query_id
stringlengths 4
6
| query
stringlengths 75
2.13k
| positive_passages
listlengths 1
1
| negative_passages
listlengths 20
20
|
|---|---|---|---|
723657 | in nature. Id. (citing Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), which holds that where exhaustion is a statutorily specified jurisdictional prerequisite, “the requirement ... may not be dispensed with merely by a judicial conclusion of futility”). The court recognizes that there is currently a split in authority as to whether § 1997e(a) applies to claims of abuse or excessive force. Compare Freeman v. Francis, 196 F.3d 641 (6th Cir.1999) (holding that exhaustion requirement applies to excessive force claims); Diezcabeza v. Lynch, 75 F.Supp.2d 250 (S.D.N.Y.1999) (same); Johnson v. Garraghty, 57 F.Supp.2d 321 (E.D.Va.1999) (same); Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884 (S.D.N.Y.1998) (same); Moore v. Smith, 18 F.Supp.2d 1360 (N.D.Ga.1998) (same); with REDACTED White v. Fauver, 19 F.Supp.2d 305 (D.N.J.1998) (same); Rodriguez v. Berbary, 992 F.Supp. 592 (W.D.N.Y.1998) (same). Because the Eleventh Circuit has not yet determined this issue, the court must decide whether or not Plaintiff was required to exhaust the available administrative remedies before it resolves Defendants’ motion to dismiss. “The starting point for all statutory interpretation is the language of the statute itself.” United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir.1999). The PLRA’s exhaustion requirement applies to those actions brought by prisoners “with respect to prison conditions.” 42 U.S.C. § 1997e(a). Unfortunately, the phrase “action ... with respect to prison conditions” is not defined in § 1997e. As | [
{
"docid": "4146097",
"title": "",
"text": "of the wrong through a report or appeal, (3) created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue, (4) was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Colon, 58 F.3d at 873. Liberally construing Wright’s complaint, Wright does not allege personal involvement by Goord, Greiner, or Dee in the beating incident. The excessive force claim against these defendants is dismissed. Defendants next argue that Wright’s excessive force claim must be dismissed for failure to exhaust administrative remedies under the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The PLRA, which became effective on April 26, 1996, 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). (Emphasis supplied.) See Salahuddin v. Mead, 174 F.3d 271, 274 (2d Cir.1999). Courts are divided over whether the PLRA’s exhaustion re-quii ements apply to excessive force claims. Compare Carter v. Kiernan, No. 98 Civ. 2664(JGK), 1999 WL 14014 at *2-5 (S.D.N.Y. Jan.14, 1999) (collecting cases); Baskerville v. Goord, No. 97 Civ. 6413(BSJ), 1998 WL 778396 at * 2-5 (S.D.N.Y. Nov.5, 1998) (collecting cases); White v. Fauver, 19 F.Supp.2d 305, 312-16 (D.N.J.1998) with Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 887-92 (S.D.N.Y.1998) (collecting cases). For the reasons set forth in Carter, 1999 WL 14014 and Baskerville, 1998 WL 778396, this Court agrees that an excessive force claim does not address “prison conditions” and exhaustion of administrative remedies is, consequently, not required. 2. Deprivation of medical care Wright next alleges that he was denied medical care on two occasions after he was beaten. Defendants assert that they have qualified immunity protecting them from suit. It was clearly established by February 25, 1997, that prison officials may not be deliberately indifferent to"
}
] | [
{
"docid": "7636361",
"title": "",
"text": "1999 WL 14014, at *5 (S.D.N.Y. Jan.14, 1999); Baskerville v. Goord, 1998 WL 778396, at *3 (S.D.N.Y. Nov.5, 1998); White v. Fauver, 19 F.Supp.2d 305, 313-15 (D.N.J.1998); Johnson v. O'Malley, 1998 WL 292421, at *3 (N.D.Ill. May 19, 1998); Rodriguez v. Berbary, 992 F.Supp. 592, 592-93 (W.D.N.Y.1998). . See George v. C.O. Lorenzo, 1999 WL 397473, at *2 (S.D.N.Y. June 15, 1999); Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 888-92 (S.D.N.Y.1998); Moore v. Smith, 18 F.Supp.2d 1360, 1363 (N.D.Ga.1998); Morgan v. Arizona Dep't of Corrections, 976 F.Supp. 892, 895-96 (D.Ariz.1997). . Prior to PLRA's amendments, § 1997e(a)(l) provided that: ... in any action brought pursuant to [42 U.S.C. § 1983] by an adult convicted of a crime confined in any jail, prison, or other correctional facility, the court shall, if the court believes that such a requirement would be appropriate and in the interests of justice, continue such a case for a period of not to exceed 180 days in order to require exhaustion of such plain, speedy, and effective administrative remedies as are available. 42 U.S.C. § 1997e(a)(l) (1994) (amended 1996). . The Random House Dictionary of the English Language 306 (Unabridged ed.1981). . See e.g. Carter, 1999 WL 14014, at *3 (finding a \"common sense interpretation’-' of the phrase \"prison conditions” to refer to \"medical treatment, food, clothing, and the nature and circumstances of the housing available in prison,” but not to the use of excessive force by prison officials). . See Moore, 18 F.Supp.2d at 1363 (finding definition of prison conditions in § 3636(g)(2) to be \"the best indication of what Congress intended when it used the term ... prison conditions’ in § 1997e(a)” and holding that action alleging prison guard assault on inmate encompassed the effects of actions by government officials on inmate’s life); Jones v. Detella, 12 F.Supp.2d 824, 826 (N.D.Ill.1998) (applying definition of \"prison conditions” in § 3626 to § 1997e(a) in suit alleging assault by guard on inmate and denial of medical care); Hollimon v. DeTella, 6 F.Supp.2d 968, 969 (N.D.Ill.1998) (same in suit alleging unlawful strip search); Warburton v. Underwood, 2"
},
{
"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": "7636360",
"title": "",
"text": "defendants were substituted for defendants Jane Doe 1 and 2 by Order dated February 12, 1999. See Johnson v. Garraghty, et al., No. 98-428-AM (E.D.Va. Feb.12, 1999). In addition, defendant Jane Doe 3 has since been identified as Nurse R. Massey. . Plaintiff further avers that defendants Ange-lone, Garrette, Williams, and Garraghty promote guards who abuse inmates. Plaintiff claims that defendant Harrison admitted that Garraghty is fully aware of Harrison’s and other guard’s brutal abusive treatment of prisoners, including beatings. Indeed, according to plaintiff, Harrison also admitted that Gar-raghty, who made Harrison the Supervisor of the GCC riot team, permits and encourages such brutality as long as Harrison “cleans up’’ after himself. . See Langford v. Couch, 50 F.Supp.2d 544, 550-51 (E.D.Va.1999) (holding that, absent any allegations or evidence that plaintiff was prevented from complying with prison grievance procedures, he could not avoid or evade § 1997e(a)'s exhaustion requirement) (citing Johnson v. Garraghty, et al., No. 98-428-AM (E.D.Va. Feb. 12, 1999) (unpublished)). . See Wright v. Dee, 54 F.Supp.2d 199, 203-04 (S.D.N.Y.1999); Carter v. Kiernan, 1999 WL 14014, at *5 (S.D.N.Y. Jan.14, 1999); Baskerville v. Goord, 1998 WL 778396, at *3 (S.D.N.Y. Nov.5, 1998); White v. Fauver, 19 F.Supp.2d 305, 313-15 (D.N.J.1998); Johnson v. O'Malley, 1998 WL 292421, at *3 (N.D.Ill. May 19, 1998); Rodriguez v. Berbary, 992 F.Supp. 592, 592-93 (W.D.N.Y.1998). . See George v. C.O. Lorenzo, 1999 WL 397473, at *2 (S.D.N.Y. June 15, 1999); Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 888-92 (S.D.N.Y.1998); Moore v. Smith, 18 F.Supp.2d 1360, 1363 (N.D.Ga.1998); Morgan v. Arizona Dep't of Corrections, 976 F.Supp. 892, 895-96 (D.Ariz.1997). . Prior to PLRA's amendments, § 1997e(a)(l) provided that: ... in any action brought pursuant to [42 U.S.C. § 1983] by an adult convicted of a crime confined in any jail, prison, or other correctional facility, the court shall, if the court believes that such a requirement would be appropriate and in the interests of justice, continue such a case for a period of not to exceed 180 days in order to require exhaustion of such plain, speedy, and effective administrative remedies as are"
},
{
"docid": "12374565",
"title": "",
"text": "exhaust the administrative remedies provided by New York law, because although plaintiff did initially submit his claims related to destruction or confiscation of his property to the prison’s administrative process, he withdrew his grievances before they were decided on their merits. Cf. Morgan v. Arizona Dep’t of Corrections, 976 F.Supp. 892, 895 (D.Ariz.1997) (declaring that a prisoner “must pursue all levels of [the available] administrative procedure” (emphasis added)); Hernandez v. Steward, No. 96-3222-SAC, 1996 WL 707015, at *2 (D.Kan. Nov.27, 1996) (holding that claimants are “obligated to pursue all levels of the administrative scheme” (emphasis added)). What can be disputed — because there is a conflict among federal courts on two aspects of the issue — is whether the administrative exhaustion requirement in § 1997e(a) applies to cases like the present one, where a plaintiff seeks monetary damages for an alleged assault by corrections officers. Courts have differed, first, about whether cases alleging the use of excessive force or assault are actions “with respect to prison conditions” as that phrase is used in § 1997e(a). Compare Baskerville v. Goord, No. 97 CIV. 6413(BSJ), 1998 WL 778396, at *3-5 (S.D.N.Y. Nov. 5, 1998) (holding that exhaustion is not required under § 1997e(a) for excessive force claims), White v. Fauver, 19 F.Supp.2d 305, 312-15 (D.N.J.1998) (same), Rodriguez v. Berbary, 992 F.Supp. 592, 593 (W.D.N.Y.1998) (same), and Johnson v. O’Malley, No. 96 C 6598, 1998 WL 292421, at *3 (N.D.Ill. May 19, 1998) (same), with Moore v. Smith, 18 F.Supp.2d 1360, 1362-63 (N.D.Ga.1998) (concluding the opposite). Courts have differed, second, about whether to apply § 1997e(a) where plaintiffs seek money damages and such relief is not “available” through the administrative process. Compare, e.g., Garrett v. Hawk, 127 F.3d 1263, 1266 (10th Cir.1997) (holding that § 1997e(a) applies only to the extent that the administrative process provides the relief requested), Whitley v. Hunt, 158 F.3d 882, 886-87 (5th Cir.1998) (same), Lunsford v. Jumao-As, 155 F.3d 1178, 1179 (9th Cir.1998) (same), Hollimon v. DeTella, 6 F.Supp.2d 968, 970 (N.D.Ill.1998) (same), Polite v. Barbarin, No. 96 CIV. 6818(DLC), 1998 WL 146687, at *2 (S.D.N.Y. Mar. 25,"
},
{
"docid": "22069063",
"title": "",
"text": "petitioning the prison administrative process for a form of relief that it cannot provide. White v. Fauver, 19 F.Supp.2d 305, 317 (D.N.J.1998) (Orlofsky, J.) (“Any other interpretation would compel the conclusion that ‘Congress intended to erect meaningless barriers to suit.’ ”) (citation omitted). These courts, as do others, see infra note 4, also conclude that § 1997e(a) is not a jurisdictional requirement, which by definition cannot be subject to a futility exception. Rather, they hold that § 1997e(a) is a codification within the PLRA of the doctrine of exhaustion of administrative remedies, which before the PLRA was enacted had a futility exception grafted upon it. See, e.g., Rumbles, 182 F.3d at 1067-68. Therefore, they conclude, it is appropriate to apply the futility exception when it is warranted, much in the same way a court would equitably toll a statute of limitations. Two courts of appeals and several district courts have refused to apply a futility exception to § 1997e(a) in light of the way the PLRA amended the section. See, e.g., Wyatt v. Leonard, 193 F.3d 876, 878 (6th Cir.1999); Alexander v. Hawk, 159 F.3d 1321, 1328 (11th Cir.1998); Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 896 (S.D.N.Y.1998). The amendment replaced the requirement that plaintiff-inmates exhaust “plain, speedy, and effective remedies as are available” with the requirement that inmate-plaintiffs exhaust “such administrative remedies as are available,” These courts reason that the elimination of the words “plain, speedy, and effective” from § 1997e(a) precludes application of a futility exception, and that the word “available” refers to any remedy the prison supplies, rather than one of the prisoner’s choosing. See, e.g., Alexander, 159 F.3d at 1326; Beeson, 28 F.Supp.2d at 893. Nyhuis’s Bivens action is distinguishable from both lines of cases because he requests a mix of remedies, some of which were and some which were not available under the Bureau of Prisons’ administrative process. Nyhuis has requested money damages and declaratory relief, which are not available from the Bureau of Prisons, see 28 C.F.R. § 542.12(b) (1999); see also BOP Program Statement 1330.13, ¶6(b)(1)-(3) (1996) (refusing to consider claims for"
},
{
"docid": "21106164",
"title": "",
"text": "claims for monetary relief when the institutional grievance process could not award that type of relief. In such situations, monetary damages would not be an “available” remedy within the meaning of § 1997e(a). Moore, 18 F.Supp.2d at 1363. Because no “available” remedy exists, it would be “an exercise in futility” to force inmates to utilize the institutional grievance process. Id. (citing Jackson, 998 F.Supp. at 904). Other courts have found that inmates must grieve their claims for money damages through the institutional grievance process, even if the institution cannot award monetary relief. See, e.g., Alexander v. Hawk, 159 F.3d 1321, 1327 (11th Cir.1998) (holding that federal inmate seeking monetary and injunctive relief must avail himself of institutional grievance procedures prior to filing suit in federal court); Beeson v. Fishkill Correctional Facility, 96 No. Civ. 7677, 1998 WL 856294, at *13 (S.D.N.Y. Dec. 10, Í998) (holding that state inmate seeking monetary relief must exhaust administrative remedies before filing lawsuit); Funches v. Reish, No. 97 CIV. 7611, 1998 WL 695904, at *9 (S.D.N.Y. Oct. 5, 1998) (finding that PLRA’s .exhaustion requirements applies to Bivens actions seeking only monetary relief); Moore, 18 F.Supp.2d at 1364 (holding that state inmate seeking monetary relief must avail himself of prison grievance procedures); Bearden v. Godfrey, No. C 98-2294, 1998 WL 456294 (N.D.Cal. Jul. 27, 1998)(same); Spence v. Mendoza, 993 F.Supp. 785, 788-89 (E.D.Cal.1998)(con-cluding that state inmate seeking monetary and declaratory relief must exhaust claims through administrative grievance process). See also Blas v. Endicott, 31 F.Supp.2d 1131, at 1133 n. 5 (E.D.Wis.1999)(disagreeing with majority position that PLRA does not require administrative exhaustion if inmate seeks monetary relief). Only one district court in this circuit has addressed the issue of whether § 1997e(a) requires inmates seeking monetary relief to exhaust their administrative remedies. See Gibbs, 986 F.Supp. at 944 (holding, without discussion, that Bivens claims for monetary relief are subject to PLRA’s exhaustion requirements). For the following reasons, the court FINDS that the proper interpretation of the PLRA’s exhaustion requirement is to require inmates seeking monetary relief to exhaust their administrative remedies. Therefore, the court declines to follow"
},
{
"docid": "7568571",
"title": "",
"text": "1997e(a) makes clear, confirmed by the legislative history, that a district court may not hear a suit “with respect to prison conditions” until the plaintiff has exhausted “such administrative remedies as are available.” For the reasons that follow, I hold that this provision applies to plaintiffs claims. IV. A Claim Based Upon Medical Indifference Is a Claim “with respect to prison conditions” Under Section 1997e(a) Plaintiff argues that a claim for medical indifference is not a claim “with respect to prison conditions,” and that there is therefore no requirement to exhaust administrative remedies. The argument is without merit. The phrase prison conditions is not defined in section 1997e(a). However, section 3626(g)(2) of title 18, enacted also as part of the PLRA to address suits by prisoners for injunctions and other forms of prospective relief, defines “civil action with respect to prison conditions” as “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison[.]” 18 U.S.C. § 3626(g)(2). The definition of this cognate provision should apply to the terms of section 1997e(a) as well. See Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 888-892 (S.D.N.Y.1998) (Mukasey, J.). As Judge Mukasey reasoned, “[w]hen Congress, in one statute, uses the same words in two different places, those words should generally be read to mean the same thing in both places.” Id. at 888; see also Russo v. Trifari, Krussman & Fishel, Inc., 837 F.2d 40, 45 (2d Cir.1988) (“Construing identical language in a single statute in pari materia is both traditional and logical.”). Plaintiffs claims clearly concern “the effects of actions by government officials on the lives of persons confined in prison[.]” 18 U.S.C. § 3626(g)(2). Though some of my colleagues have disagreed with Beeson’s holding, see Wright v. Dee, 54 F.Supp.2d 199, 203-204 (S.D.N.Y.1999) (Cote, J.); Carter v. Kiernan, No. 98 Civ. 2664(JGK), 1999 WL 14014, at *2-*5 (S.D.N.Y. Jan.14, 1999) (Koeltl, J.); Baskerville v. Goord, No. 97 Civ. 6413(BSJ), 1998 WL 778396, at *2-*5 (S.D.N.Y. Nov.5, 1998) (Jones, J.), at least"
},
{
"docid": "22277681",
"title": "",
"text": "(3d Cir.1996) (recognizing the same exceptions); Trevino-Barton v. Pittsburgh Nat. Bank, 919 F.2d 874, 878 (3d Cir.1990) (same). These two conjunctive preconditions are clearly met in this case. In briefing this issue and at oral argument, Booth's counsel stated that Booth had elected \"to stand on his complaint without amendment.” Additionally, both parties agree that the time is long past for Booth to pursue his normal administrative remedies; therefore, he cannot cure the defect in his complaint on which the District Court based its dismissal. . The other courts of appeals that have been presented with the issue have declined to resolve it for different reasons. See Miller v. Tanner, 196 F.3d 1190, 1191 n. 1 (11th Cir.1999) (declining to resolve the issue in light of the fact that the court disposed of the appeal on other grounds); Liner v. Goord, 196 F.3d 132, 135 (2d Cir.1999) (recognizing that the law concerning the PLRA’s \"action ... with respect to prison conditions” language was in flux, but refusing to resolve the question \"without the benefit of a more complete record”); Rumbles v. Hill, 182 F.3d 1064, 1066 n. 2 (9th Cir.1999) (declining to address the issue because \"it was not raised below”). District courts are split on the issue. Those holding that excessive force actions fall under § 1997e(a) include the District Court in the present appeal, Beeson v. Fishkill Conectional Facility, 28 F.Supp.2d 884 (S.D.N.Y.1998) (Mukasey, J.), and Johnson v. Garraghty, 57 F.Supp.2d 321 (E.D.Va.1999) (Ellis, J.). These courts rely on McCarthy and the definition of \"action with respect to prison conditions” in § 3626(g)(2) to support their holding. District courts holding to the contrary include White v. Fauver, 19 F.Supp.2d 305 (D.N.J.1998) (Orlofsky, J.), and Carter v. Kiernan, No. 98 Civ. 2664(JGK), 1999 WL 14014 (S.D.N.Y. Jan. 14, 1999) (Koeltl, J.). . Without addressing McCarthy, except to mention our reliance on it, the dissent advances plain meaning and legislative history arguments to support its position. The dissent parses the phrase \"prison conditions” in § 1997e(a) — looking to its definition in Webster’s and in 28 U.S.C. § 3626(g)(2) —"
},
{
"docid": "22277682",
"title": "",
"text": "a more complete record”); Rumbles v. Hill, 182 F.3d 1064, 1066 n. 2 (9th Cir.1999) (declining to address the issue because \"it was not raised below”). District courts are split on the issue. Those holding that excessive force actions fall under § 1997e(a) include the District Court in the present appeal, Beeson v. Fishkill Conectional Facility, 28 F.Supp.2d 884 (S.D.N.Y.1998) (Mukasey, J.), and Johnson v. Garraghty, 57 F.Supp.2d 321 (E.D.Va.1999) (Ellis, J.). These courts rely on McCarthy and the definition of \"action with respect to prison conditions” in § 3626(g)(2) to support their holding. District courts holding to the contrary include White v. Fauver, 19 F.Supp.2d 305 (D.N.J.1998) (Orlofsky, J.), and Carter v. Kiernan, No. 98 Civ. 2664(JGK), 1999 WL 14014 (S.D.N.Y. Jan. 14, 1999) (Koeltl, J.). . Without addressing McCarthy, except to mention our reliance on it, the dissent advances plain meaning and legislative history arguments to support its position. The dissent parses the phrase \"prison conditions” in § 1997e(a) — looking to its definition in Webster’s and in 28 U.S.C. § 3626(g)(2) — and concludes that the phrase does not encompass claims of excessive force. As do we in addressing § 3626(g)(2)’s definition, the dissent divides the section’s language into its two components. It opines that the \"statutory phrase ‘conditions of confinement' [in § 3626(g)(2)) do[es] not encompass specific batteries.” Dissent at 301. As noted above, we take no exception to the dissent’s understanding of this clause. See supra Section II.A. If Congress had only used the \"conditions of confinement” language in § 3626(g)(2), we would be forced, as was the Court in McCarthy, 500 U.S. at 139-44, 111 S.Ct. 1737, to query whether this language was employed in the context of the statute to connote something other than its most natural meaning. See supra Section II.B. (The dissent engages in this \"contextual” analysis of the PLRA, but for reasons explained in note 9, infra, we are unconvinced by its reading.) Addressing the second half of the definition provided in § 3626(g)(2), the dissent continues: \"A guard hits you on the mouth. Would you report the blow by"
},
{
"docid": "22768548",
"title": "",
"text": "attempt to correct legitimate complaints, even though it will not pay damages. Plaintiff then argues that the language in the statute, “no action shall be brought with respect to prison conditions,” does not apply to assaults or excessive force claims on prisoners by prison officers. Neither the Supreme Court nor any circuit court has directly addressed this issue, although we note that at least three circuit courts, including our own, have held, without discussing the precise issue raised by plaintiff herein, that claims of excessive force must be exhausted. Wendell v. Asher, 162 F.3d 887 (5th Cir.1998); Brown v. Toombs, 139 F.3d 1102 (6th Cir.), cert. denied, — U.S. -, 119 S.Ct. 88, 142 L.Ed.2d 69 (1998); Garrett v. Hawk, 127 F.3d 1263 (10th Cir.1997); see also White v. McGinnis, 131 F.3d 593 (6th Cir.1997) (exhaustion required where the prisoner brought a claim of retaliation). The district courts that have addressed the issue are divided on whether exhaustion is required. Compare Johnson v. Garraghty, 57 F.Supp.2d 321, 325-26 (E.D.Va.1999); Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 888-92 (S.D.N.Y.1998); Moore v. Smith, 18 F.Supp.2d 1360, 1363 (N.D.Ga.1998); Morgan v. Arizona Dep’t of Corrections, 976 F.Supp. 892, 895-96 (D.Ariz.1997) (exhaustion required) with Baskerville v. Goord, No. 97 CIV. 6413, 1998 WL 778396 at *3 (S.D.N.Y. Nov. 5, 1998); White v. Fauver, 19 F.Supp.2d 305, 313-15 (D.N.J.1998) (exhaustion not required). The phrase “action ... with respect to prison conditions” is not defined in § 1997e. Because the question is one of statutory construction, we must first look to the plain language of the statute. Defendants argue that the term “prison conditions” as used in 18 U.S.C. § 3626(g)(2), which was amended as part of the same legislation as § 1997e, does include claims such as excessive force because it expressly includes “effects of actions by government officials on the lives of confined persons” as well as “conditions of confinement” in defining “prison conditions.” Defendants argue that Congress intended those additional words to include an act such as excessive force by a prison guard. It is generally recognized that when Congress uses the"
},
{
"docid": "7568572",
"title": "",
"text": "§ 3626(g)(2). The definition of this cognate provision should apply to the terms of section 1997e(a) as well. See Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 888-892 (S.D.N.Y.1998) (Mukasey, J.). As Judge Mukasey reasoned, “[w]hen Congress, in one statute, uses the same words in two different places, those words should generally be read to mean the same thing in both places.” Id. at 888; see also Russo v. Trifari, Krussman & Fishel, Inc., 837 F.2d 40, 45 (2d Cir.1988) (“Construing identical language in a single statute in pari materia is both traditional and logical.”). Plaintiffs claims clearly concern “the effects of actions by government officials on the lives of persons confined in prison[.]” 18 U.S.C. § 3626(g)(2). Though some of my colleagues have disagreed with Beeson’s holding, see Wright v. Dee, 54 F.Supp.2d 199, 203-204 (S.D.N.Y.1999) (Cote, J.); Carter v. Kiernan, No. 98 Civ. 2664(JGK), 1999 WL 14014, at *2-*5 (S.D.N.Y. Jan.14, 1999) (Koeltl, J.); Baskerville v. Goord, No. 97 Civ. 6413(BSJ), 1998 WL 778396, at *2-*5 (S.D.N.Y. Nov.5, 1998) (Jones, J.), at least two Judges, including Judge Cote in Wright, have explicitly held that claims for medical indifference are claims “with respect to prison conditions” under section 1997e(a). See Wright, 54 F.Supp.2d at 204-206; Vasquez v. Artuz, No. 97 Civ. 8427(AJP), 1999 WL 440631, at *5 (S.D.N.Y. June 28, 1999) (collecting cases). And even Judge Koeltl in Carter and Judge Jones in Baskerville recognized, in dictum, that claims for deliberate indifference to medical needs are claims “with respect to prison conditions.” Carter, 1999 WL 14014, at *2-*5 (claim of excessive force by prison guard held not governed by definition of prison conditions contained in section 3626(g)(2) and thus not subject to exhaustion; but stating that “[t]he ordinary, contemporary, common meaning of the phrase ‘prison conditions’ refers to such things as medical treatment”); Baskerville, 1998 WL 778396, at *2-*5 (reaching same result for slightly different reasons with respect to claim of excessive force, but noting that exhaustion “ordinarily would be required ... [for a] medical treatment claim because these claims do concern prison conditions”). I thus hold that plaintiffs"
},
{
"docid": "23266218",
"title": "",
"text": "of non-exhaustion in § 1983 cases); City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 731-32, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995) (narrowly interpreting statutory exception in Fair Housing Act); Tasini v. New York Times Co., 206 F.3d 161, 168 (2d Cir.2000) (narrowly interpreting statutory exception in Copyright Act). II. Applicability of § 1997e to Excessive Force or Assault Claims Whether or not assault or excessive force claims are subject to the amended version of the § 1997e(a) exhaustion requirement turns entirely on whether such claims fall within the category of actions “brought with respect to prison conditions” covered by that provision. If particular incidents of assault or the use of excessive force do not constitute “prison conditions” within the meaning of the statutory text, then Nussle’s § 1983 claim should not be subject to the exhaustion requirement. Conversely, if claims for particular instances of assault or excessive force are properly considered claims “brought with respect to prison conditions,” then Nussle must fulfill § 1997e(a)’s requirement that he exhaust “such administrative remedies as are available” before taking his federal claims to court. 42 U.S.C. § 1997e(a). The issue is one of first impression in this Circuit. See Liner v. Goord, 196 F.3d 132, 135 (2d Cir.1999) '(declining to resolve the “complex legal issue[ ]” of whether § 1997e(a)’s exhaustion requirement encompasses particular claims for excessive force). Courts have divided over whether excessive force and assault claims are encompassed within this provision. See id. (noting split in authority). A number of courts that have analyzed the issue, including the Third and ■ Sixth Circuits, have concluded that §' 1997e(a) does encompass such claims. See Booth v. Churner, 206 F.3d 289, 293-98 (3d Cir.2000) (excessive force claims are actions “brought with respect to prison conditions” under § 1997e(a)), cert. granted, No. 99-1964 (Oct. 30, 2000); Freeman v. Francis, 196 F.3d 641, 643-44 (6th Cir.1999); Cuoco v. United States Bureau of Prisons, No. 98 Civ. 9009, 2000 WL 347155, at *3-*6 (S.D.N.Y. Mar.31, 2000); Castillo v. Buday, 85 F.Supp.2d 309, 312 (S.D.N.Y.2000); Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 888-92"
},
{
"docid": "23266219",
"title": "",
"text": "are available” before taking his federal claims to court. 42 U.S.C. § 1997e(a). The issue is one of first impression in this Circuit. See Liner v. Goord, 196 F.3d 132, 135 (2d Cir.1999) '(declining to resolve the “complex legal issue[ ]” of whether § 1997e(a)’s exhaustion requirement encompasses particular claims for excessive force). Courts have divided over whether excessive force and assault claims are encompassed within this provision. See id. (noting split in authority). A number of courts that have analyzed the issue, including the Third and ■ Sixth Circuits, have concluded that §' 1997e(a) does encompass such claims. See Booth v. Churner, 206 F.3d 289, 293-98 (3d Cir.2000) (excessive force claims are actions “brought with respect to prison conditions” under § 1997e(a)), cert. granted, No. 99-1964 (Oct. 30, 2000); Freeman v. Francis, 196 F.3d 641, 643-44 (6th Cir.1999); Cuoco v. United States Bureau of Prisons, No. 98 Civ. 9009, 2000 WL 347155, at *3-*6 (S.D.N.Y. Mar.31, 2000); Castillo v. Buday, 85 F.Supp.2d 309, 312 (S.D.N.Y.2000); Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 888-92 (S.D.N.Y.1998). However, a number of courts have held to the. contrary. See Tolliver v. Wilson, No. 99 Civ. 9555, 2000 WL 1154311, at *4 (S.D.N.Y. Aug.14, 2000) (“prison conditions” does not encompass particular incidents of.assault or use of excessive force); Giannattasio v. Artuz, No. 97 Civ. 7606, 2000 WL 335242, at *11-*12 (S.D.N.Y. Mar.30, 2000); Wright v. Dee, 54 F.Supp.2d 199, 205-06 (S.D.N.Y.1999); Carter v. Kiernan, No. 98 Civ. 2664, 1999 WL 14014, at *2-*5 (S.D.N.Y. Jan. 14, 1999); Baskerville v. Goord, No. 97 Civ. 6413, 1998 WL 778396, at *2-*5 (S.D.N.Y. Nov.5, 1998); Royster v. United States, No. 98 Civ. 4109, 1999- WL 1567734, *3 (S.D.N.Y. Nov.23,1999); see also Peddle v. Sawyer, 64 F.Supp.2d 12, 15-16 (D.Conn.1999) (“prison conditions” does not encompass sexual assault). In light of the text, structure, and legislative history of the PLRA, we agree with those courts that have held that § 1997e(a) does not encompass particular instances of excessive force or assault. A. Statutory Text of§ 1997e(a) In considering the proper scope of § 1997e(a), we begin by examining"
},
{
"docid": "11776851",
"title": "",
"text": "96 C 6598, 1998 WL 292421, at*3 (N.D.Ill. May 19,1998). Other courts have found that the phrase “action ... with respect to prison conditions” should be interpreted to encompass excessive force claims and that as a result excessive force claims may not proceed in federal court until any administrative remedies have been exhausted. See Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 888 (S.D.N.Y.1998); Johnson v. Garraghty, 57 F.Supp.2d 321, 322-323 (E.D.Va. 1999); Moore v. Smith, 18 F.Supp.2d 1360, 1362-63 (N.D.Ga.1998); Morgan v. Arizona Department of Corrections, 976 F.Supp. 892, 896 (D.Ariz.1997). The phrase “action ... with respect to prison conditions” is not defined in 42 U.S.C. § 1997e(a). However, this phrase is defined in 18 U.S.C. § 3626, which was enacted as part of the PLRA. See Pub.L. No. 104-134, § 802(a), 110 Stat. 1321, 1321-70 (1996). Section 3626(g)(2) states, in relevant part, that the term “civil action with respect to prison conditions” means any civil proceedings arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison. This definition clarifies that the term “prison conditions” broadly includes “the effects of actions by government officials on the lives of persons confined in prison,” as well as actions challenging the “conditions of confinement.” Excessive force by correctional officers most assuredly constitutes the “effects of actions by government officials on the lives of persons confined in prison.” See Moore, 18 F.Supp.2d at 1363; Morgan, 976 F.Supp. at 895-96. In interpreting section 1997e(a)’s exhaustion requirement, it is appropriate for this Court to draw upon the statutory definition contained in 18 U.S.C. § 3626. Identical language used in different parts of the same statute should be interpreted to have the same meaning. See Mertens v. Hewitt Associates, 508 U.S. 248, 260, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (“language used in one portion of a statute [ ] should be deemed to have the same meaning as the same language used"
},
{
"docid": "12374566",
"title": "",
"text": "Compare Baskerville v. Goord, No. 97 CIV. 6413(BSJ), 1998 WL 778396, at *3-5 (S.D.N.Y. Nov. 5, 1998) (holding that exhaustion is not required under § 1997e(a) for excessive force claims), White v. Fauver, 19 F.Supp.2d 305, 312-15 (D.N.J.1998) (same), Rodriguez v. Berbary, 992 F.Supp. 592, 593 (W.D.N.Y.1998) (same), and Johnson v. O’Malley, No. 96 C 6598, 1998 WL 292421, at *3 (N.D.Ill. May 19, 1998) (same), with Moore v. Smith, 18 F.Supp.2d 1360, 1362-63 (N.D.Ga.1998) (concluding the opposite). Courts have differed, second, about whether to apply § 1997e(a) where plaintiffs seek money damages and such relief is not “available” through the administrative process. Compare, e.g., Garrett v. Hawk, 127 F.3d 1263, 1266 (10th Cir.1997) (holding that § 1997e(a) applies only to the extent that the administrative process provides the relief requested), Whitley v. Hunt, 158 F.3d 882, 886-87 (5th Cir.1998) (same), Lunsford v. Jumao-As, 155 F.3d 1178, 1179 (9th Cir.1998) (same), Hollimon v. DeTella, 6 F.Supp.2d 968, 970 (N.D.Ill.1998) (same), Polite v. Barbarin, No. 96 CIV. 6818(DLC), 1998 WL 146687, at *2 (S.D.N.Y. Mar. 25, 1998) (same), White, 19 F.Supp.2d at 316-17 (same), and Lacey v. C.S.P. Solano Med. Staff, 990 F.Supp. 1199, 1205 (E.D.Cal. 1997) (same) with Alexander v. Hawk, 159 F.3d 1321, 1325-27, 1998 WL 770109 (11th Cir.1998) (holding that exhaustion is required even where the administrative process does not provide the requested relief), Funches v. Reish, No. 97 CIV. 7611(LBS), 1998 WL 695904, at *7-9 (S.D.N.Y. Oct. 5, 1998) (same), Moore, 18 F.Supp.2d at 1363-64 (same), Spence v. Mendoza, 993 F.Supp. 785, 787-88 (E.D.Cal.1998) (same), Warburton v. Underwood, 2 F.Supp.2d 306, 311 (W.D.N.Y. 1998) (applying § 1997e(a) to a claim for monetary damages, without analysis of the issue), and Melo v. Combes, No. 97 Civ. 0204(JGK), 1998 WL 67667, at *2-3 (S.D.N.Y. Feb. 18, 1998) (same). For the reasons stated below, I find the arguments in favor of applying § 1997e(a) to cases of this type more convincing, and therefore conclude — notwithstanding that several of my colleagues, from this and other jurisdictions, have held otherwise — that plaintiff was required to exhaust his remedies. A. Section"
},
{
"docid": "22768549",
"title": "",
"text": "F.Supp.2d 884, 888-92 (S.D.N.Y.1998); Moore v. Smith, 18 F.Supp.2d 1360, 1363 (N.D.Ga.1998); Morgan v. Arizona Dep’t of Corrections, 976 F.Supp. 892, 895-96 (D.Ariz.1997) (exhaustion required) with Baskerville v. Goord, No. 97 CIV. 6413, 1998 WL 778396 at *3 (S.D.N.Y. Nov. 5, 1998); White v. Fauver, 19 F.Supp.2d 305, 313-15 (D.N.J.1998) (exhaustion not required). The phrase “action ... with respect to prison conditions” is not defined in § 1997e. Because the question is one of statutory construction, we must first look to the plain language of the statute. Defendants argue that the term “prison conditions” as used in 18 U.S.C. § 3626(g)(2), which was amended as part of the same legislation as § 1997e, does include claims such as excessive force because it expressly includes “effects of actions by government officials on the lives of confined persons” as well as “conditions of confinement” in defining “prison conditions.” Defendants argue that Congress intended those additional words to include an act such as excessive force by a prison guard. It is generally recognized that when Congress uses the same language in. two different places in the same statute, the words are usually read to mean the same thing in both places. Commissioner v. Lundy, 516 U.S. 235, 250, 116 S.Ct. 647, 133 L.Ed.2d 611 (1996); Gustafson v. Alloyd Co., 513 U.S. 561, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995). Moreover, reading the term “prison conditions” to include claims of excessive force finds support in the purpose and legislative history of the Act. The Act was passed to reduce frivolous prisoner lawsuits and to reduce the intervention of federal courts into the management of the nation’s prison systems. A broad exhaustion requirement that includes excessive force claims effectuates this purpose and maximizes the benefits of requiring prisoners to use prison grievance procedures before coming to federal court. Prisons need to know about and address claims of excessive force as they would any other claim concerning prison life so that steps may be taken to stop problems immediately if they exist. A Supreme Court case decided before passage of the Reform Act holds that the"
},
{
"docid": "7811743",
"title": "",
"text": "courts in this circuit, are split on the following issues, both of which are implicated here: whether cases alleging the use of excessive force are actions “with respect to prison conditions” as that phrase is used in 42 U.S.C. § 1997e(a); and whether the administrative exhaustion requirement is inapplicable where the relief requested—i.e., strictly monetary damages—is not “available” through the administrative process. See Rumbles v. Hill, 182 F.3d 1064, 1066-70 (9th Cir.1999) (outlining issue concerning available remedy; discussing split among the circuits on issue, citing conflicting cases; and holding that inmate was not required to exhaust administrative remedies where remedy sought was not available in prison’s administrative remedy program); Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532, 533-538 (7th Cir.1999) (citing and discussing conflicting cases, court holds that neither assertion that exhaustion would be futile nor alleged unavailability of administrative remedy negated exhaustion requirement); Carter v. Kiernan, No. 98 Civ. 2664, 1999 WL 14014, at *2-*5 (S.D.N.Y. Jan. 14, 1999) (holding that Eighth Amendment excessive force claims are not subject to PLRA exhaustion requirement); Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 887-96 (S.D.N.Y.1998) (holding that Eighth Amendment excessive force claims as well as claims seeking only monetary relief are subject to exhaustion requirement); Baskerville v. Goord, No. 97 Civ. 6413, 1998 WL 778396, at *2-*5 (S.D.N.Y. Nov. 5, 1998) (holding that exhaustion requirement does not apply to Eighth Amendment excessive force claims). Considering the split in authority and the fact that the district court sua sponte dismissed these claims before the defendants were served or had answered, we reverse the district court’s dismissal of these claims and remand for service. We decline to resolve the complex legal issues presented here without the benefit of a more complete record, including an answer from the defendants. (c) Claim Dismissed Under § 1997e(e) Appellant contends that Commissioner Goord has a policy or practice that permits corrections officers to conduct intrusive body searches without “therapeutic supervision.” The district court dismissed this claim, concluding that it was an emotional distress claim and appellant “alleged no prior showing of physical injury.” Liner, No. 98-CV-6343L,"
},
{
"docid": "14152734",
"title": "",
"text": "requires inmates seeking solely monetary damages to exhaust their administrative remedies, even if the prison grievance system does not award money damages. See, e.g., Sallee v. Joyner, 1999 WL 101387, at *1 (E.D.Va. Feb.23, 1999) (Bivens claim); Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884 (S.D.N.Y. 1998) (§ 1983 claim); Decker v. Watch Commander John Doe, 1998 WL 883300, at *2 (S.D.N.Y. Dec. 17, 1998) (§ 1983 claim); Fortes v. Harding, 19 F.Supp.2d 323 (M.D.Pa. 1998) (Bivens claim); Funches v. Reish, 1998 WL 695904, at *9 (S.D.N.Y. Oct.5, 1998) (Bivens claim); Moore v. Smith, 18 F.Supp.2d 1360, 1364 (N.D.Ga.1998)(§ 1983 claim); Smith v. Stubblefield, 30 F.Supp.2d 1168 (E.D.Mo.1998) (§ 1983 claim); Spence v. Mendoza, 993 F.Supp. 785, 788-89 (E.D.Cal. 1998) (§ 1983 claim); Gibbs v. Bureau of Prison Office, 986 F.Supp. 941, 944 (D.Md.1997)(Bivens claim). However, other district courts have held that such inmates need not comply with § 1997e(a)'s exhaustion requirement in prison grievance systems that do not award monetary relief. See, e.g., Lacey v.C.S.P. Solano Med. Staff, 990 F.Supp. 1199, 1205 (E.D.Cal. 1997)(§ 1983. claim); Harris v. Mugarrab, 1998 WL 246450, at *3 (N.D.Ill. May 1, 1998) (§ 1983 claim); Jackson v. DeTella, 998 F.Supp. 901, 904 (N.D.Ill.1998) (§ 1983 claim); Keeling v. Ford, 1998 WL 566664, at *2 (D.Kan. Aug.21, 1998) (Bivens claim); Polite v. Barbarin, 1998 WL 146687, at *2 (S.D.N.Y. Mar.25, 1998) (§ 1983 claim); Russo v. Palmer, 990 F.Supp. 1047, 1050 (N.D.Ill. 1998) (§ 1983 claim); White v. Fauver, 19 F.Supp.2d 305 (D.N.J.1998) (§ 1983 claim); Davis v. Woehrer, 32 F.Supp.2d 1078 (E.D.Wis.1999) (§ 1983 claim). . § 1997e(a), prior to its amendment by the PLRA, provided as follows: (1) [s]ubject to the provisions of paragraph (2), in any action brought pursuant to [42 U.S.C. § 1983] by an adult convicted of a crime confined in any jail, prison, or other correctional facility, the court shall, if the court believes that such a requirement would be appropriate and in the interests of justice, continue such a case for a period of not to exceed 180 days in order to require exhaustion of such plain,"
},
{
"docid": "11776849",
"title": "",
"text": "prior to bringing suit. Because Diezcabeza did not file a response to that motion, he was directed to show cause why the motion should not be granted. Plaintiff subsequently submitted a letter to the Court which shall be construed liberally, see McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999), and shall be deemed to be plaintiffs response to Lynch’s motion. II. Discussion Pursuant to the Prison Litigation Reform Act of 1996, which amended 42 U.S.C. § 1997e(a), see Pub. L No. 104-134, 110 Stat. 1321 (codified at 42 U.S.C. § 1997 (West Supp.1998) and 18 U.S.C. § 3626 (West Supp.1998)), “no action shall be brought with respect to prison conditions under section 1983 or any other federal law ... until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prior to the PLRA, it was not mandatory that the prisoner exhaust his administrative remedies prior to commencing litigation and the exhaustion requirement itself was limited to actions brought pursuant to section 1983. The PLRA extended the scope of the exhaustion requirement to actions brought pursuant to section 1983 and “any other Federal law,” whereas the previous version applied only to section 1983 claims. The gravamen of plaintiffs complaint is that defendants used excessive force in violation of Diezcabeza’s Eighth Amendment right to be free from cruel and unusual punishment. The issue before this Court is whether the PLRA’s mandatory exhaustion requirement applies to claims of excessive force, an issue about which numerous courts have disagreed. See Liner v. Goord, 196 F.3d 132, 135-135 (2d Cir. 1999) (noting that the law in this area is in “great flux”). Several courts have held that a plaintiffs administrative avenues of redress need not be exhausted for actions based on excessive force because they are not “action[s] ... with respect to prison conditions,” and therefore are not covered by the PLRA’s mandatory exhaustion requirement. See Baskerville v. Goord, No. 97 Civ. 6413, 1998 WL 778396, at*3-*5 (S.D.N.Y. Nov. 5, 1998; White v. Fauver, 19 F.Supp.2d 305, 312-15 (D.N.J.1998); Rodriguez v. Berbary, 992 F.Supp. 592, 593 (W.D.N.Y.1998); Johnson v. O’Malley, No."
},
{
"docid": "11776850",
"title": "",
"text": "to actions brought pursuant to section 1983 and “any other Federal law,” whereas the previous version applied only to section 1983 claims. The gravamen of plaintiffs complaint is that defendants used excessive force in violation of Diezcabeza’s Eighth Amendment right to be free from cruel and unusual punishment. The issue before this Court is whether the PLRA’s mandatory exhaustion requirement applies to claims of excessive force, an issue about which numerous courts have disagreed. See Liner v. Goord, 196 F.3d 132, 135-135 (2d Cir. 1999) (noting that the law in this area is in “great flux”). Several courts have held that a plaintiffs administrative avenues of redress need not be exhausted for actions based on excessive force because they are not “action[s] ... with respect to prison conditions,” and therefore are not covered by the PLRA’s mandatory exhaustion requirement. See Baskerville v. Goord, No. 97 Civ. 6413, 1998 WL 778396, at*3-*5 (S.D.N.Y. Nov. 5, 1998; White v. Fauver, 19 F.Supp.2d 305, 312-15 (D.N.J.1998); Rodriguez v. Berbary, 992 F.Supp. 592, 593 (W.D.N.Y.1998); Johnson v. O’Malley, No. 96 C 6598, 1998 WL 292421, at*3 (N.D.Ill. May 19,1998). Other courts have found that the phrase “action ... with respect to prison conditions” should be interpreted to encompass excessive force claims and that as a result excessive force claims may not proceed in federal court until any administrative remedies have been exhausted. See Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 888 (S.D.N.Y.1998); Johnson v. Garraghty, 57 F.Supp.2d 321, 322-323 (E.D.Va. 1999); Moore v. Smith, 18 F.Supp.2d 1360, 1362-63 (N.D.Ga.1998); Morgan v. Arizona Department of Corrections, 976 F.Supp. 892, 896 (D.Ariz.1997). The phrase “action ... with respect to prison conditions” is not defined in 42 U.S.C. § 1997e(a). However, this phrase is defined in 18 U.S.C. § 3626, which was enacted as part of the PLRA. See Pub.L. No. 104-134, § 802(a), 110 Stat. 1321, 1321-70 (1996). Section 3626(g)(2) states, in relevant part, that the term “civil action with respect to prison conditions” means any civil proceedings arising under Federal law with respect to the conditions of confinement or the effects of actions by"
}
] |
196048 | Datair asserts that a bankruptcy court has the power to enjoin the IRS’s collection of taxes despite the Anti-Injunction Statute under its Section 105 powers and Section 505(a)(1). Section 505(a)(1) expressly provides that bankruptcy courts may determine the amount or legality of any tax, fine or penalty relating to a tax, or any addition to a tax. However, a bankruptcy proceeding is not one of the expressly articulated provisions set forth in Section 7421(a) of the Internal Revenue Code. Therefore, it must be determined if Datair’s bankruptcy proceeding is a situation in which general equitable jurisdiction exists to entertain Da-tair’s claims or if the above provisions of the Bankruptcy Code create an additional exception to Section 7421(a). In the case of REDACTED While the court acknowledged that none of the 7421(a) exceptions applied to its situation, it held that the Anti-Injunction Act was not relevant since Congress evidenced an intention to enact a complete scheme governing bankruptcy which overrides the general policy of that statute. The court pointed out that Congress gave the bankruptcy court jurisdiction to determine the dischargeability of debts. Since the policy of the bankruptcy scheme is the rehabilitation of the debtor, the Bostwick court was convinced that the bankruptcy court must have the power | [
{
"docid": "22211422",
"title": "",
"text": "the “anti-injunction” statute and hence that the bankruptcy court was without jurisdiction to issue an injunction in this case. Section 7421(a) of the 1954 Internal Revenue Code provides: Except as provided in sections 6212(a) and (c), 6213(a), and 7426(a) and (b)(1), 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 United States argues that none of the statutory exemptions are applicable to the present case and that the narrow judicial exception as announced in En-ochs v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962) and reaffirmed in 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), is equally inapplicable. We agree. However, we do not believe that the “anti-injunction statute” is relevant to the present case inasmuch as Congress has evidenced an intention to enact a complete scheme governing bankruptcy which overrides the general policy represented by the “anti-injunction” act. We stated above that, in our opinion, Congress has given the bankruptcy court jurisdiction under Section 2a(2A) of the Bankruptcy Act, supra, to determine the dischargeability of a tax debt where the United States had not filed a proof of claim or otherwise participated in or consented to the proceedings. We believe that the overriding policy of the Bankruptcy Act is the rehabilitation of the debtor and we are convinced that the Bankruptcy Court must have the power to enjoin the assessment and/or collection of taxes in order to protect its jurisdiction, administer the bankrupt’s estate in an orderly and efficient manner, and fulfill the ultimate policy of the Bankruptcy Act. Section 17(c) of the Bankruptcy Act provides in part: (1) The bankrupt or any creditor may file an application with the court for the determination of dischargeability of any debt. * * * * * * (3) After hearing upon notice, the court"
}
] | [
{
"docid": "17973179",
"title": "",
"text": "Joe Booth, the controlling owner and chief executive officer of the debtor corporation. DISCUSSION Judge Pelofsky’s decision in In Re H & R Ice Co. contains a two-part discussion of a bankruptcy court’s jurisdiction, in a Chapter 11 proceeding involving a corporate debtor, to decide the validity of the assessment of a § 6672 penalty against an individual officer or employee. First of all, the court pointed to 11 U.S.C. § 505(a)(1) as the source of its power to determine the individual’s liability for the corporate debt- or’s unpaid taxes. Although the assessment against the individual did not involve the debtor’s estate, the liability, if any, arises “from the failure to pay the taxes of the debtor.” 24 B.R. at 30. Moreover, “the jurisdictional grant of that Section is not, by its terms, limited to a determination of tax liability of the debtor.” Accord, In Re Major Dynamics, Inc., 14 B.R. 969 971 (Bkrtcy.S.D.Cal.1981). The obligations of third parties are, therefore, within the -broad scope of a bankruptcy court’s § 505(a)(1) authority. Accord In Re Jon Co., Inc., 30 B.R. 831, 833-34 (D.Colo.1983). Judge Pelofsky’s opinion then continues by evaluating the effect of the anti-injunction statute, 26 U.S.C. § 7421, on a bankruptcy court’s power to enjoin IRS collection of a § 6672 penalty. The anti-injunction statute 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.” Because the primary purpose of this statute (“to protect the government’s need to assess and collect taxes as expediently as possible with a minimum of pre-enforcement judicial interference”) “collides with the thrust and philosophy of the bankruptcy proceedings,” Judge Pelofsky concluded that he had the authority to grant the injunctive relief sought. 24 B.R. at 31-32. Accord In Re Datair Systems Corp., 37 B.R. 690, 695-96 (Bkrtcy.N.D.Ill.1983). That the anti-injunction statute is not a barrier to the relief sought in the present case is confirmed by the Eighth Circuit opinion in Bostwick v. United"
},
{
"docid": "8388090",
"title": "",
"text": "to be deemed to have waived its immunity under Section 106 of the Code. However, since the IRS has filed its proofs of claim in the Datair estates, this is not an issue which the court must address. Section 106 establishes significant limitations upon the ability of a governmental unit to protect itself by assertion of the doctrine of sovereign immunity while that governmental unit is at the same time attempting to enforce claims against the debtor, either in the context of bankruptcy proceedings involving the debtor or elsewhere. (See Colliers on Bankruptcy, 15th edition, ¶ 106.01). The language of Section 106 encompasses “claims,” not penalties, that are property of the estate and that arise from the same transaction or occurrence as the government’s claims. Yet, Datair’s request to enjoin the penalty arises from an unpaid claim the IRS has against it. Although Section 6672 of the Internal Revenue Code imposes a personal liability on corporate officers, which is separate and distinct from that imposed upon the corporate employer, the claims against the corporate officers arise from the corporation’s failure to pay the involved withholding taxes. Collection of those claims by the IRS could certainly have an adverse affect on the debtor’s reorganization efforts. Therefore, we hold that the “claim” being litigated here is a claim against a government unit “that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit’s claim arose.” See Section 106 of the Bankruptcy Code, supra. Thus, the IRS is deemed to have waived its sovereign immunity with respect to the claims at issue. THE ANTI-INJUNCTION ACT The next question is whether the Bankruptcy Court has the power to issue an injunction against the IRS in face of the Anti-Injunction Statute set forth in 26 U.S.C. Section 7421(a), which says: Except as provided in sections 6212(a) and (c), 6213(a), 6672(b), 6694(c), 7426(a) and (b)(1) and 7429(b), 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"
},
{
"docid": "18728297",
"title": "",
"text": "REVENUE SERVICE to collect the 100% penalty imposed by Internal Revenue Code § 6672 is to cause detriment to the reorganization efforts of the debtor, the Court may, under the general equitable provisions of 11 U.S.C. § 105, authorize injunctive relief to preclude the collection efforts. The testimony in the instant action reveals the general chilling effect upon the reorganization effort created by the INTERNAL REVENUE SERVICE collection efforts, especially in view of the provisions of the confirmed plan which provide for payment of all sums outstanding and due to the INTERNAL REVENUE SERVICE within the time allowed by law. The DEBTOR’S principals also testified to the problems encountered in refinancing and obtaining new equipment necessary to carry out the DEBTOR’S reorganization. The Court is convinced that the DEBTOR has established a sufficient stake in the outcome of this action. To argue otherwise would create a chilling effect on almost every corporate Chapter 11 proceeding in which federal taxes are owed and would potentially lead to a situation requiring the filing of individual Chapter ll’s by the DEBTOR’S principals to accomplish the effect provided by allowing this injunctive relief. The Court sees no reason to create such an overly burdensome situation for both the principals of the corporate debtors and the Court itself when injunctive relief is clearly available. The Court further agrees with the rationale of the Jon Co. and Datair cases, holding that sovereign immunity has been effectively waived by the government by virtue of the provisions of 11 U.S.C. § 106 as well as 11 U.S.C. § 505(a)(1). It should be noted in the instant action that the INTERNAL REVENUE SERVICE has filed its Proof of Claim and submitted itself to the jurisdiction of the Court in that regard. Likewise, the Anti-Injunction Act, 26 U.S.C. § 7421(a) is not applicable in that the intention of Congress to enact a complete scheme governing bankruptcy over rides the general policy represented by the Anti-Injunction Act. The provisions of 11 U.S.C. § 105(a) permitting a bankruptcy judge to issue “any order, process or judgment that is necessary or appropriate to"
},
{
"docid": "7460772",
"title": "",
"text": "Appeals for the Eighth Circuit, in upholding the issuance of an injunction against collection of taxes from a bankrupt, declared that the rehabilitative purpose of the Bankruptcy Act outweighs the force of § 7421(a). The court stated: We believe that the overriding policy of the Bankruptcy Act is the rehabilitation of the debtor and we are convinced that the Bankruptcy Court must have the power to enjoin the assessment and/or collection of taxes in order to protect its jurisdiction, administer the bankrupt’s estate in an orderly and efficient manner, and fulfill the ultimate policy of the Bankruptcy Act. 521 F.2d at 744. Inasmuch as we are of the opinion that judicially created exemptions to § 7421(a) contravene clear congressional intent, it is unnecessary to address the question whether the factors held controlling in Bostwick are present here. Congress has not chosen to include bankruptcy court adjudications within the exceptions to § 7421(a). Indeed, Congress most recently enacted additional exceptions to § 7421(a) on November 2, 1966, see Pub. L.No.89-719, Title I, § 110(c), 80 Stat. 1144, only four months after conferring on bankruptcy courts through 11 U.S.C. § 11(a)(2A), Pub.L.No.89-496, § 1, 80 Stat. 270 (July 5, 1966), the power to “hear and determine . . . any question arising as to the amount or legality of any unpaid tax.” Had Congress wished its 1966 amendments to the Bankruptcy Act to authorize bankruptcy courts to issue injunctions against the collection of tax, we believe this intention would have been reflected in the amendments to 26 U.S.C. § 7421(a) enacted later that year. However persuasive the arguments against application of § 7421(a) to bankruptcy court adjudications may be, we believe that a bankruptcy court exemption cannot be judicially fashioned without contravening congressional intent. Although there may be some merit in permitting the policy behind the Bankruptcy Act to outweigh the rationale that underpins the anti-injunction legislation, such argument should be addressed to Congress. Accordingly, we conclude that the district court erred in sustaining the injunction that has been issued in this case. When we consider the power of the bankruptcy court"
},
{
"docid": "8388093",
"title": "",
"text": "remedy at law. See Alexander v. Americans United, Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518; Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496; Enochs v. Williams Packing Co., supra. In effect, courts have permitted the enjoining of tax cases where general equitable jurisdiction exists to entertain plaintiff’s claims. Unless both conditions of the above two part equitable test are met, however, it has been held that suits to enjoin the collection of a tax must be dismissed for lack of jurisdiction. Rappaport v. U.S., 583 F.2d 298 (7th Cir.1978). Datair asserts that a bankruptcy court has the power to enjoin the IRS’s collection of taxes despite the Anti-Injunction Statute under its Section 105 powers and Section 505(a)(1). Section 505(a)(1) expressly provides that bankruptcy courts may determine the amount or legality of any tax, fine or penalty relating to a tax, or any addition to a tax. However, a bankruptcy proceeding is not one of the expressly articulated provisions set forth in Section 7421(a) of the Internal Revenue Code. Therefore, it must be determined if Datair’s bankruptcy proceeding is a situation in which general equitable jurisdiction exists to entertain Da-tair’s claims or if the above provisions of the Bankruptcy Code create an additional exception to Section 7421(a). In the case of Bostwick v. U.S., 521 F.2d 741, the Eighth Circuit affirmed a Bankruptcy Court ruling that the court had the jurisdiction to determine the dischargeability of a federal tax debt and affirmed the order enjoining the collection of the taxes pending the dischargeability determination. While the court acknowledged that none of the 7421(a) exceptions applied to its situation, it held that the Anti-Injunction Act was not relevant since Congress evidenced an intention to enact a complete scheme governing bankruptcy which overrides the general policy of that statute. The court pointed out that Congress gave the bankruptcy court jurisdiction to determine the dischargeability of debts. Since the policy of the bankruptcy scheme is the rehabilitation of the debtor, the Bostwick court was convinced that the bankruptcy court must have the power to enjoin"
},
{
"docid": "17973180",
"title": "",
"text": "Jon Co., Inc., 30 B.R. 831, 833-34 (D.Colo.1983). Judge Pelofsky’s opinion then continues by evaluating the effect of the anti-injunction statute, 26 U.S.C. § 7421, on a bankruptcy court’s power to enjoin IRS collection of a § 6672 penalty. The anti-injunction statute 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.” Because the primary purpose of this statute (“to protect the government’s need to assess and collect taxes as expediently as possible with a minimum of pre-enforcement judicial interference”) “collides with the thrust and philosophy of the bankruptcy proceedings,” Judge Pelofsky concluded that he had the authority to grant the injunctive relief sought. 24 B.R. at 31-32. Accord In Re Datair Systems Corp., 37 B.R. 690, 695-96 (Bkrtcy.N.D.Ill.1983). That the anti-injunction statute is not a barrier to the relief sought in the present case is confirmed by the Eighth Circuit opinion in Bostwick v. United States, 521 F.2d 741, 744 (1975) (“[W]e do not believe that the ‘anti-injunction statute’ is relevant to the present case inasmuch as Congress has evidenced an intention to enact a complete scheme governing bankruptcy which overrides the general policy represented by the ‘anti-injunction’ act.”). In Bostwick, the Eighth Circuit held that a bankruptcy court had the power to determine the dis-chargeability of a debtor’s federal tax debt and the jurisdiction to enjoin the district director from collecting such taxes. While the Bostwick view of the anti-injunction statute in the context of bankruptcy proceedings is not shared by some other courts, it has not been reevaluated or rejected in the Eighth Circuit. The Bostwick holding should apply equally to the situation where a bankruptcy court is considering enjoining an assessment of a tax against a non-party to a Chapter 11 proceeding if there is bankruptcy jurisdiction. The court is more troubled, however, by Judge Pelofsky’s conclusion that 11 U.S.C. § 505(a)(1) authorizes bankruptcy court jurisdiction over tax liabilities and penalties assessed against a non-debtor. While it"
},
{
"docid": "1101990",
"title": "",
"text": "fund taxes from debtor’s officer). Contra In re Major Dynamics, Inc., 14 B.R. 969, 970 (Bkrtcy.S.D.Cal.1981) (complete scheme of Bankruptcy Act supersedes general policy of Anti-Injunction Act). Neither the Ninth Circuit Court of Appeals nor this Panel has ruled on this issue. The vast majority of the cases holding that the Anti-Injunction Act, 26 U.S.C. § 7421(a), does not bar a bankruptcy court from enjoining the IRS from collecting trust fund taxes from officers of the Debt- or rely on the Eighth Circuit case of Bostwick v. United States, 521 F.2d 741 (8th Cir.1975). However, the Eighth Circuit subsequently ruled in A to Z Welding & Mfg. Co., Inc. v. United States, 803 F.2d 932, 933 (8th Cir.1986) that “Bostwick is inapposite” when an attempt to prohibit the IRS from collecting a tax assessed against officers and shareholders in their personal capacity is in issue. The Court stated that in Bostwick the injunction “was against collection of taxes assessed against the debtors in bankruptcy”, (emphasis original) 803 F.2d at 933. The only other circuit court decision on this issue resulted in a conclusion that the IRS cannot be enjoined from collecting trust fund taxes from a bankrupt. Matter of Becker’s Motor Transportation, Inc., 632 F.2d 242 (3rd Cir.1980) (Act case). As the Court expressed therein, Congress has not chosen to enact additional exceptions to the Anti-Injunction Act even though it had such an opportunity after it conferred on bankruptcy courts the power to “hear and determine ... any question arising as to the amount or legality of any unpaid tax.” 632 F.2d at 246 (citing 11 U.S.C. § 11(a)(2A), Pub.L. No. 89-496, § 1, 80 Stat. 270 (July 5, 1966)). The Court also noted that Congress did not consider whether bankruptcy courts may enjoin the collection of taxes although it empowered bankruptcy courts with the authority to “determine the amount or legality of any tax, any fine or penalty relating to a tax” under 11 U.S.C. § 505(a)(1). 632 F.2d at 246 n. 3. It has been argued by some that the provisions of 11 U.S.C. § 105, enacted to"
},
{
"docid": "7460771",
"title": "",
"text": "tax penalties and interest. III. INJUNCTIVE AND DECLARATORY RELIEF The next question we resolve is whether the bankruptcy court was authorized to grant the equitable relief requested by plaintiffs. The IRS urges that a bankruptcy court is prohibited from enjoining IRS collection efforts, and that the district court therefore erred in sustaining the injunction issued by the bankruptcy court. 26 U.S.C. § 7421(a) states in pertinent part: Except as provided in sections 6212(a) and (c), 6213(a), and 7426(a) and (b)(1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person . . . Although the district court found the exemptions set forth in § 7421 (a) inapplicable to this case, it nevertheless held that the bankruptcy court had properly enjoined the IRS collection efforts on the ground that the case fell within the ambit of Bostwick v. United States, 521 F.2d 741 (8th Cir. 1975), which represents a judicially created exception to the strictures of § 7421(a). In Bostwick, the Court of Appeals for the Eighth Circuit, in upholding the issuance of an injunction against collection of taxes from a bankrupt, declared that the rehabilitative purpose of the Bankruptcy Act outweighs the force of § 7421(a). The court stated: We believe that the overriding policy of the Bankruptcy Act is the rehabilitation of the debtor and we are convinced that the Bankruptcy Court must have the power to enjoin the assessment and/or collection of taxes in order to protect its jurisdiction, administer the bankrupt’s estate in an orderly and efficient manner, and fulfill the ultimate policy of the Bankruptcy Act. 521 F.2d at 744. Inasmuch as we are of the opinion that judicially created exemptions to § 7421(a) contravene clear congressional intent, it is unnecessary to address the question whether the factors held controlling in Bostwick are present here. Congress has not chosen to include bankruptcy court adjudications within the exceptions to § 7421(a). Indeed, Congress most recently enacted additional exceptions to § 7421(a) on November 2, 1966, see Pub. L.No.89-719, Title I, § 110(c), 80 Stat."
},
{
"docid": "7095276",
"title": "",
"text": "for injunc-tive relief. The so-called “anti-injunction statute” provides, with specific exceptions inapplicable here, 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.” There is no question that the Internal Revenue Code provides a comprehensive scheme for the collection of unpaid taxes from any possible source. There is also no question that Kenneth Bennett’s liability is individual and personal, Kelly v. Lethert, 362 F.2d 629, 635 (8th Cir.1966), Spivak v. United States, 370 F.2d 612 (2nd Cir.1976), and that he may be assessed for the tax deficiency under Section 6672. The primary purpose of Section 7421 is to protect the government’s need to assess and collect taxes as expediently as possible with a minimum of pre-enforcement judicial interference. Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974). But in the matter before the court that purpose collides with the thrust and philosophy of the bankruptcy proceedings. The basic question of which policy consideration is paramount was resolved in this circuit in Bostwick v. United States, 521 F.2d 741 (8th Cir.1975). “.. . [W]e do not believe that the ‘anti-injunction statute’ is relevant to the present case inasmuch as Congress has evidenced an intention to enact a complete scheme governing bankruptcy which overrides the general policy represented by the ‘anti-injunction’ act.” “We believe that the overriding policy of the Bankruptcy Act is the rehabilitation of the debtor and we are convinced that the Bankruptcy Court must have the power ... to protect its jurisdiction, administer the bankrupt’s estate in an orderly and efficient manner, and fulfill the ultimate policy of the Bankruptcy Act.” at 744. Although the Bostwicks were debtors and their case arose under the Bankruptcy Act,. the policy considerations are similar. Here, as in Bostwick, the United States has denied the application of Bankruptcy Court jurisdiction to the question. See In re Major Dynamics, supra, at 970, n. 2. This Court finds that it has"
},
{
"docid": "8388095",
"title": "",
"text": "the assessment or collection of taxes in order to protect its jurisdiction, administer the bankruptcy estate in an orderly and efficient manner and to fulfill the ultimate policy of the Bankruptcy Act. An opposite result was reached by the Third Circuit in the case of Matter of Beckers Motor Transp. Inc., 632 F.2d 242 (1980). There the IRS appealed a bankruptcy court injunction of its collection efforts on certain tax debts and pre-petition interest owed by the debtor. The appellate court, in reversing the bankruptcy court stated that judicially created exceptions to Section 7421(a), like those created in Bostwick, supra contravene clear congressional intent. The Beckers court found that although there may be some merit in permitting the Bankruptcy Act rehabilitation policy to outweigh the Anti-Injunction legislation rationale, such arguments should be addressed to Congress. Therefore, courts must choose between: (1) the government’s need to collect taxes and the fact that Section 7421 makes no exception for bankruptcy cases; and (2) the general policy of the Bankruptcy Act, which is rehabilitation of financially troubled businesses. In order to resolve this dilemma, the court may turn back to the original question of whether a bankruptcy proceeding requires the court to use its general equitable jurisdiction to entertain the debt- or’s claims. The restoration and maintenance of a viable, tax-paying corporation economically benefits the entire economic community, not just the individual debtor. Therefore, courts have permitted the enjoining of tax cases involving debtors where equity requires it. Instead of judicially creating an exception to Section 7421 for bankruptcy cases in general, the better approach is a.case by case determination of whether equity and the common good require such an injunction. Although the Anti-Injunction Act does not preclude enjoining the IRS from collection of taxes or penalties in appropriate cases, in order to show that such an injunction should issue the debtor must prove the following: 1. Irreparable harm to the bankruptcy estate if the injunction does not issue; 2. A strong likelihood of success on the merits; 3. No harm or minimal harm to the other parties or party; and 4. A"
},
{
"docid": "1140971",
"title": "",
"text": "the bankruptcy assets as against other creditors.” OVERRIDING POLICY OF THE BANKRUPTCY COURT Under certain circumstances some bankruptcy courts have asserted jurisdiction to enjoin the Internal Revenue Service, regardless of the anti-injunctive provisions in 26 U.S.C. § 7421(a). Thus, in Bostwick v. United States, 521 F.2d 741, 744 (8th Cir. 1975), it was held that the bankruptcy court had power to enjoin the assessment and collection of taxes by the Internal Revenue Service “in order to protect its jurisdiction, administer the bankrupt’s estate in an orderly and efficient manner, and fulfill the ultimate policy of the Bankruptcy Act.” This was based on what the court perceived to be the overriding policy, namely “the rehabilitation of the debtor.” The Bostwick case involved a dispute as to the discharge-ability of the bankrupt’s tax debt under the now repealed Bankruptcy Act of 1898. In Major Dynamics, Inc., 14 B.R. 969 (Bkrtcy.S.D.Cal.1981), this principle was extended to disputes between third-party creditors and the Internal Revenue Service which threatened to fractionalize creditors so that reorganization of the debtor corporation would be impossible. The court noted that 11 U.S.C. § 505(a) authorized the Bankruptcy Court to determine the amount or legality of any tax, fine, or penalty relating to a tax. Moreover, the court concluded that 11 U.S.C. § 505(a) is not, by its terms, limited to a determination of the tax liability of the debtor. Therefore, it was held that the bankruptcy court had “jurisdiction to determine disputes between third party creditors and the IRS in an appropriate case.” [Emphasis added]. The court’s holding in Major Dynamics Inc., supra, was premised on a finding that the exercise of its jurisdiction “was necessary to the rehabilitation of the debtor or the orderly and efficient administration of the debtor’s estate.” Id. at 972. The debtor had sought rehabilitation under Chapter 11 of the Bankruptcy Code. The decisions in Bostwick v. United States, supra, and Major Dynamics Inc., supra, were recently relied upon by the bankruptcy court in H & R Ice Company Inc., 24 B.R. 28, 9 B.C.D. 941 (Bkrtcy.W.D.Mo.1982), where the Internal Revenue Service was temporarily"
},
{
"docid": "23435618",
"title": "",
"text": "bank. (Tr., 18-21.) Pat Donaldson, the Service agent responsible for serving the summons, testified she had been telephoning officers and shareholders to request information with which to pursue the 100% penalty. These efforts by the Service certainly threatened the debtor’s ability successfully to reorganize itself, and provide Jon Co., Inc. a sufficient stake to proceed to the merits of the case. INJUNCTIVE RELIEF The Anti-Injunction Act provides, in pertinent part, 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.” 26 U.S.C. § 7421(a). Section 7421 admits of several statutory exceptions, none of which are applicable here. The principal purpose of the statute is “the protection of the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of pre-enforcement judicial interference .... ” Bob Jones University v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1973). Jon Co., Inc. relies upon 11 U.S.C. § 105(a), which permits a bankruptcy judge to issue “any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title.” Without direction or authority from the 10th Circuit, I am asked to make a policy choice between the government’s need to collect taxes and the orderly administration of the Bankruptcy Act. The eighth and third circuits have split on whether a bankruptcy court can properly enjoin Service collection efforts. See, Bostwick v. United States, 521 F.2d 741 (8th Cir.1975); Matter of Becker’s Motor Transport, Inc., 632 F.2d 242 (3rd Cir. 1980). I believe that Bostwick is the better reasoned case and therefore choose to follow it: [W]e do not believe that the ‘anti-injunction statute’ is relevant to the present case inasmuch as Congress has evidenced an intention to enact a complete scheme governing bankruptcy which overrides the general policy represented by the ‘anti-injunction’ act. We believe that the overriding policy of the Bankruptcy Act is the rehabilitation of the debtor and we are"
},
{
"docid": "18760209",
"title": "",
"text": "the debtor, not a creditor of the debtor, which, argues the IRS, makes the Bostwick case distinguishable from the case at bar. The Court, it maintains, cannot extend its jurisdiction to IRS activity vis a vis creditors of the debtor. This Court does not agree that its jurisdiction is so limited. The Bostwick decision is one example of the proposition that the Court has jurisdiction to enjoin the IRS from the assessment and collection of taxes despite the anti-injunction statute if such activity interferes with the orderly administration of the estate or the rehabilitation of the debtor. See Bostwick v. United States, supra. As the Bostwick court stated: “We believe that the overriding policy of the Bankruptcy Act is the rehabilitation of the debtor and we are convinced that the Bankruptcy Court must have the power to enjoin the assessment and/or collection of taxes in order to protect its jurisdiction, administer the bankrupt’s estate in an orderly and efficient manner, and fulfill the ultimate policy of the Bankruptcy Act.” Bostwick v. United States, 521 F.2d 741,744 (8th Cir. 1975). That decision logically determined that the complete scheme of the Bankruptcy Act superseded the general policy of the anti-injunction statute. Particular attention was given to the jurisdictional grant of § 2(aX2A) of the Bankruptcy Act [former 11 U.S.C. § ll(a)(2A)] and the scheme there provided for the determination of dis-chargeability of tax debts. The Bankruptcy Reform Act of 1978 expanded this Court’s jurisdiction. See 28 U.S.C. § 1471. The Bankruptcy Code, as a counterpart to former Section 2(a)(2A) of the Act, has Section 505 which provides similarly for the determination of tax debt amounts or legality. The jurisdictional grant of § 505 is not, by its terms, limited to a determination of tax liability of the debtor. The legislative history of § 505 indicates that Congress’ focus was on the tax obligations of the debtor and/or the debtor’s estate. Nowhere does it appear that Congress considered whether § 505 should apply to the tax obligations of a third party, such as a creditor of the estate. However, de spite the legislative"
},
{
"docid": "8388094",
"title": "",
"text": "Revenue Code. Therefore, it must be determined if Datair’s bankruptcy proceeding is a situation in which general equitable jurisdiction exists to entertain Da-tair’s claims or if the above provisions of the Bankruptcy Code create an additional exception to Section 7421(a). In the case of Bostwick v. U.S., 521 F.2d 741, the Eighth Circuit affirmed a Bankruptcy Court ruling that the court had the jurisdiction to determine the dischargeability of a federal tax debt and affirmed the order enjoining the collection of the taxes pending the dischargeability determination. While the court acknowledged that none of the 7421(a) exceptions applied to its situation, it held that the Anti-Injunction Act was not relevant since Congress evidenced an intention to enact a complete scheme governing bankruptcy which overrides the general policy of that statute. The court pointed out that Congress gave the bankruptcy court jurisdiction to determine the dischargeability of debts. Since the policy of the bankruptcy scheme is the rehabilitation of the debtor, the Bostwick court was convinced that the bankruptcy court must have the power to enjoin the assessment or collection of taxes in order to protect its jurisdiction, administer the bankruptcy estate in an orderly and efficient manner and to fulfill the ultimate policy of the Bankruptcy Act. An opposite result was reached by the Third Circuit in the case of Matter of Beckers Motor Transp. Inc., 632 F.2d 242 (1980). There the IRS appealed a bankruptcy court injunction of its collection efforts on certain tax debts and pre-petition interest owed by the debtor. The appellate court, in reversing the bankruptcy court stated that judicially created exceptions to Section 7421(a), like those created in Bostwick, supra contravene clear congressional intent. The Beckers court found that although there may be some merit in permitting the Bankruptcy Act rehabilitation policy to outweigh the Anti-Injunction legislation rationale, such arguments should be addressed to Congress. Therefore, courts must choose between: (1) the government’s need to collect taxes and the fact that Section 7421 makes no exception for bankruptcy cases; and (2) the general policy of the Bankruptcy Act, which is rehabilitation of financially troubled businesses."
},
{
"docid": "10241093",
"title": "",
"text": "“the • protection of the government’s need to assess and collect taxes as expeditiously as possible with a minimum of pre-enforcement judicial interference ...” Bob Jones University v. Simon, 416 U.S. 725, 726, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974). In the present controversy, the purpose of Section 7421 directly collides with the thrust and philosophy of the bankruptcy proceedings, on which Plaintiff relies. Plaintiff contends that 11 U.S.C. Section 105(a) which permits a bankruptcy judge to issue “any order, process or judgment that is necessary or appropriate to carry out the provisions of this title,” empowers this Court to enjoin the Internal Revenue Service’s collection of the penalty. When faced with this direct statutory conflict, the Eighth and Third circuits have split on whether a bankruptcy court can properly enjoin the Internal Revenue Service’s collection efforts. See Bostwick v. United States, 521 F.2d 741 (8th Cir.1975), Matter of Becker’s Motor Transportation, Inc., 632 F.2d 242 (3d Cir.1980). In resolving the basic question of which policy consideration is paramount, this Court joins the Bostwick court, as did the majority of the courts subsequently faced with this controversy, in holding that this Bankruptcy Court has power to enjoin the Internal Revenue Service’s efforts. In Bo-stwick, the Court articulated the overriding considerations of the Bankruptcy Code: “... [W]e do not believe that the ‘anti-injunction statute’ is relevant to the present case inasmuch as Congress has evidenced an intention to enact a complete scheme represented by the ‘anti-injunction’ act. We believe that the overriding policy of the Bankruptcy Act is the rehabilitation of the debtor and we are convinced that the Bankruptcy Court must have the power ... to protect its jurisdiction, administer the bankrupt’s estate in an orderly and efficient manner, and fulfill the ultimate policy of the Bankruptcy Act.” And see cases following Bostwick, In re Jon Co., Inc., 30 B.R. 831 (D.Colo.1983), 521 F.2d at 744, In re H & R Ice Co., Inc., 24 B.R. 28 (Bankruptcy W.D.Mo.1982), In re Otero Mills, Inc., 25 B.R. 1018 (D.N.M.1982), In re Major Dynamics, Inc., 14 B.R. 969 (Bankruptcy S.D.Calif.1981). The"
},
{
"docid": "8388092",
"title": "",
"text": "is the person against whom such tax was assessed. The object of Section 7421(a) is to withdraw jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes. 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. In this manner the United States is assured of prompt collection of its lawful revenue. Enochs v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1961). Where an injunction against the United States is being sought and it does not fit within one of the exceptions articulated in Section 7421, suits for injunctions in tax cases have still been allowed in certain extreme situations where: 1. Under the most pro-government view of the law and facts, the IRS could not ultimately prevail; and 2. Plaintiff will sustain irreparable injury for which there is no adequate remedy at law. See Alexander v. Americans United, Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518; Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496; Enochs v. Williams Packing Co., supra. In effect, courts have permitted the enjoining of tax cases where general equitable jurisdiction exists to entertain plaintiff’s claims. Unless both conditions of the above two part equitable test are met, however, it has been held that suits to enjoin the collection of a tax must be dismissed for lack of jurisdiction. Rappaport v. U.S., 583 F.2d 298 (7th Cir.1978). Datair asserts that a bankruptcy court has the power to enjoin the IRS’s collection of taxes despite the Anti-Injunction Statute under its Section 105 powers and Section 505(a)(1). Section 505(a)(1) expressly provides that bankruptcy courts may determine the amount or legality of any tax, fine or penalty relating to a tax, or any addition to a tax. However, a bankruptcy proceeding is not one of the expressly articulated provisions set forth in Section 7421(a) of the Internal"
},
{
"docid": "17973181",
"title": "",
"text": "States, 521 F.2d 741, 744 (1975) (“[W]e do not believe that the ‘anti-injunction statute’ is relevant to the present case inasmuch as Congress has evidenced an intention to enact a complete scheme governing bankruptcy which overrides the general policy represented by the ‘anti-injunction’ act.”). In Bostwick, the Eighth Circuit held that a bankruptcy court had the power to determine the dis-chargeability of a debtor’s federal tax debt and the jurisdiction to enjoin the district director from collecting such taxes. While the Bostwick view of the anti-injunction statute in the context of bankruptcy proceedings is not shared by some other courts, it has not been reevaluated or rejected in the Eighth Circuit. The Bostwick holding should apply equally to the situation where a bankruptcy court is considering enjoining an assessment of a tax against a non-party to a Chapter 11 proceeding if there is bankruptcy jurisdiction. The court is more troubled, however, by Judge Pelofsky’s conclusion that 11 U.S.C. § 505(a)(1) authorizes bankruptcy court jurisdiction over tax liabilities and penalties assessed against a non-debtor. While it is true that § 505(a)(1) by its terms is not “limited to a determination of tax liability of the debtor,” In Re Major Dynamics, Inc., 14 B.R. at 971, the fact that the individual’s liability for the § 6672 penalty is “distinct from and in addition to the employer’s' liability for these taxes,” points against the exercise of subject matter jurisdiction in the present case. Howard v. United States, 711 F.2d 729, 733 (5th Cir. 1983). In this regard, I agree with the analysis of the jurisdictional issue offered by the district court in Huckabee Auto Co., 46 B.R. at 743-745. That case concerned the bankruptcy court’s power to hear the Chapter 11 debtor’s challenge to an individual’s liability for a § 6672 penalty. The bankruptcy court had upheld the challenge to its jurisdiction, finding that the § 6672 penalty, if allowed, would harm the debt- or’s reorganization plan because the individual would likely be forced to take money from the employer corporation to pay the assessment. The district court disagreed. Because the § 6672"
},
{
"docid": "8388098",
"title": "",
"text": "corporate officer that arises from non-payment of corporate tax debts and could interfere with the orderly administration of the corporation’s estate and rehabilitation, sufficiently alleges the corporate debtor’s stake in the outcome to establish standing. On the issue of sovereign immunity, a well established principle of law exempts the United States from suit unless it specifically waives sovereign immunity. However, section 106 of the Bankruptcy Code expressly limits the government’s immunity where it is attempting to enforce claims against debtors in bankruptcy proceedings. Section 106 is applicable and the government is deemed to have waived its sovereign immunity where the IRS seeks to enforce a claim against a debtor’s corporate officers for the debtor’s unpaid taxes, has filed proofs of claim for those taxes in the debtor’s estates and enforcement jeopardizes the debtor’s ability to reorganize. Finally, where an injunction against the IRS is sought but does not fit within one of the articulated exceptions of the Anti-Injunction Act, it may still be allowed where general equitable jurisdiction exists. A bankruptcy proceeding is not an expressly articulated exception set forth in Section 7421 and should not become a judicially created exception. However, if a debtor can prove the basic elements to assert equity jurisdiction, a bankruptcy court on a case-by-case basis may and should hear an injunction against the IRS in a tax case despite the Anti-Injunction Statute. WHEREFORE, IT IS HEREBY ORDERED that the IRS’s motion to dismiss Datair’s adversary complaint is denied. It is further ordered that the IRS shall have 30 days from the date of this order to file an answer to Datair’s complaint and a status hearing on said complaint will be held on December 30, 1983 at 9:30 a.m."
},
{
"docid": "2619377",
"title": "",
"text": "The debtors filed a complaint against the IRS seeking declaratory and injunctive relief prohibiting the IRS from any future collection attempts. The bankruptcy court enjoined the IRS from future collection efforts, and the IRS appealed. The district court affirmed the bankruptcy court’s ruling, rationalizing that the rehabilitative purpose of the Bankruptcy Act overrode the purpose of 26 U.S.C. § 7421, the anti-injunction statute. The IRS appealed this decision to the United States Court of Appeals for the Third Circuit, which vacated the judgment of the district court. In its opinion, the Third Circuit analyzed the interaction between the Bankruptcy Act and the anti-injunction statute. The anti-injunction statute provides in relevant part: (a) Tax. Except as provided in sections 6212(a) and (c), 6213(a), 6672(b), 6694(c), 7426(a) and (b)(1), and 7429(b), 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. 26 U.S.C. § 7421. Although exceptions to this statute have been created by Congress, Congress has included neither the bankruptcy court nor debtors as one of the enumerated exceptions to the anti-injunction act. The Becker’s court noted that Congress enacted additional exceptions to the anti-injunction statute just four months after bankruptcy courts were granted the power to “ ‘hear and determine ... any question arising as to the amount or legality of any unpaid tax.’ ” 632 F.2d at 246 (quoting 11 U.S.C. § ll(a)(2A), Pub.L. No. 89-496, § 1, 80 Stat. 270 (July 5, 1966)). Despite this grant of power, Congress did not include either the bankruptcy court or debtors as an enumerated exception to the anit-injunction act. The Becker’s court found this fact to be dispositive of Congress’ intent that the anti-injunction statute supercedes the bankruptcy act. Although the court acknowledged that there may be some merit in permitting the policies of the Bankruptcy Act to outweigh those of the anti-injunction statute, the court steadfastly maintained that Congress, not the courts, must make such a decision. 632 F.2d at 246. Other courts"
},
{
"docid": "18774400",
"title": "",
"text": "purpose, the court concludes that the standing issue would not itself bar relief, inasmuch as the complaint alleges that pursuit of its corporate officers by IRS imperils its confirmed plan of reorganization. The debtor alleges that additional investment of both time and money by these officers is essential to the consummation of the plan and the future operations of the reorganized debtor. The debtor alleges that such activity and investment by its officers, necessary to make the plan work, is being disrupted by the IRS collection efforts. The debtor further points out that the IRS will be paid the taxes in question under the plan. The debtor accordingly is directly aggrieved, and a true case and controversy is presented, on the face of the complaint. The objection to standing therefore must be denied. Cf. In re Jon Company, Inc., 30 B.R. 831, 9 C.B.C. 2d 1, 4 (Dist.Ct., Colo, 1983). The Anti-Injunction Act presents a more difficult question, which has caused a sharp split in the circuits. See, Bostwick v. United States, 521 F.2d 741 (8th Cir.1975); Matter of Becker’s Motor Transport, Inc., 632 F.2d 242 (3d Cir.1980). Conflict continues in the lower courts as to whether the Bankruptcy Code or the Internal Revenue Code should prevail. See, In re Mildred Pressimore, 39 B.R. 240 (NDNY, 1984); In re Datair Systems Corp., 37 B.R. 690, 11 B.C.D. 1235 (N.D.Ill., 1983). Courts do have power to carve limited exceptions to the Anti-Injunction Act. Enochs v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). Moreover, the Bankruptcy Code in § 105 provides broad equitable power to the bankruptcy court to effectuate the Code. This provision has been used to support injunc-tive relief notwithstanding 26 U.S.C. § 7421(a). In re Datair Systems, supra, 37 B.R. 690, 11 B.C.D. at pp. 1237-38. The courts forced to choose between the bankruptcy law and the tax law have largely debated the presumed intent of Congress, in general terms, as to the competing demands of the two statutes. However, as Datair recognizes, the question fundamentally is an equitable one as to whether"
}
] |
385048 | “the region of interest [ ] is the part of the anatomy that they would be interested in viewing.” 2. The district court defined a “substantially uniform magnetic field” as a magnetic field that is “substantially uniform to obtain useful MRI images.” Medrad proposes that a substantially uniform magnetic field is a magnetic field “that has largely, but not wholly, the same form throughout.” Although Medrad may have waived that construction by arguing it to the district court only after the magistrate judge made his recommendation, we do not have to decide the waiver issue because we agree with the magistrate judge’s definition. Medrad .bases its construction of “substantially uniform” on this court’s interpretation of the same term in REDACTED Ecolab involved a patent for a solid detergent cast used in commercial dish-washing machines. The disputed claim term described the cast as a “substantially uniform alkaline detergent for ware and hard surface washing.” The district court construed “substantially uniform” in that case to mean “a level of continuity of the elements from top-to-bottom throughout the case such that a homogenous cleaning solution is formed over the life of the cast.” Id. at 1365. This court reversed. We noted that the claim at issue was entirely structural and contained no functional limitations. In particular, we explained, the claim contained “no claimed functional requirement as to forming a homogeneous wash solution throughout the cast life,” other than for the detergent “to contain components capable | [
{
"docid": "6753169",
"title": "",
"text": "scope of the '818 patent claims. 1. Nonnumerically Limited Descriptive Claim Terms We disagree with Ecolab that nonnu-mercially limited descriptive claim terms are “commonly defined according to the purpose of the invention.” Contrary to Ecolab’s contention, nonnumerieally limited descriptive claim terms are construed using the same rules of construction as any other claim term. In Laitram, we affirmed the district court’s construction of the term “slightly greater” as related to the term “spacing” in terms of the purpose of the spacing. 863 F.2d at 858, 9 USPQ2d at 1293. However, we deemed this appropriate at least in part because the claim language itself contained functional limitations related to the spacing limitation. The prosecution revealed that the functional limitations in the claim required spacing that would minimize bending and maximize shear. Id., 863 F.2d 855, 9 USPQ2d at 1292-93 (the limitation at issue was: “said link ends being dimensioned and spaced apart by a distance slightly greater than said width so that said module is end-to-end reversible, so that a plurality of said modules may be engaged with each other at said ends.”). We are not faced with the same facts in this case. While the claimed “three-dimensional, solid, cast, hydrated, substantially uniform alkaline detergent” is “for ware and hard surface washing,” there is no claimed functional requirement as to forming a homogeneous wash solution throughout the cast life. The only functional requirement of the claimed “three dimensional, solid, cast, hydrated, substantially uniform alkaline detergent” is for that detergent to contain components capable of “ware and hard surface washing.” Thus, while we agree with the district court and Ecolab that there is no basis in the intrinsic record on which to infer adding a numerical limitation to the phrase “substantially uniform,” there is also no basis on which to require adding a functional limitation. 2. The Claim Language and the Written Description In construing the claims of a patent, we review the intrinsic evidence, which consists of the claim language, the written description, and the prosecution history. Interactive Gift Express, Inc. v. CompuServe Inc., 256 F.3d 1323, 1329 (Fed.Cir.2001). We first"
}
] | [
{
"docid": "6753154",
"title": "",
"text": "solid detergent cast contained within a disposable container that surrounds the cast on all but one surface for use in commercial dish-washing machines. The main ingredients of the cast are alkali caustics, e.g., sodium hydroxide, and water conditioners — also called hardness sequestering agents, e.g., sodium tripolyphosphate. In particular, claim 1 recites: 1. A detergent-containing article of commerce comprising: (a) a three-dimensional, solid, cast, hydrated, substantially uniform alkaline detergent for ware and hard surface washing comprising: (1) at least about 30% by weight of an alkaline hydratable chemical consisting essentially of alkali metal hydroxide; (2) an effective amount of a hardness-sequestering agent; (3) water of hydration, at least a portion of said water of hydration being associated with said alkali metal hydroxide, wherein the alkali metal hydroxide and the hardness sequestering agent are present in an amount sufficient to render the cast detergent a solid at room temperature by virtue of the water of hydration; and (b) a receptacle-shaped disposable container surrounding and in contact with said solid, cast, hydrated alkaline detergent composition on all but one surface thereof. '818 patent, col. 27,11. 38-60. To form the cast, the ingredients are heated in a vat with water, poured into the container in a molten state and cooled. In use, the container is placed upside down in a dispenser in the dishwasher and water is intermittently sprayed against the exposed surface of the cast to dissolve it and allow it to flow into a tank of water to form the wash solution for a dishwashing cycle. A single cast can last through several hundred wash cycles. Prior to the claimed invention, the commercial ware cleaning industry desired to increase sanitary standards and have shorter wash times. As a consequence, higher alkalinity detergents, e.g., detergents with greater concentrations of sodium hydroxide, began to be used. The higher alkalinity detergents, however, had stability problems because other components of the detergent such as chlorine-containing compounds and defoamers are not stable in the presence of highly alkaline chemicals. In addition, the increase in alkalinity made the detergents difficult to dissolve in a satisfactorily uniform manner"
},
{
"docid": "8094639",
"title": "",
"text": "nonuniformity allowable in the magnetic field, which is part of an “imaging system for forming- images of a region of interest.” That interpretation is further supported by the specification, which gives as an object of the invention “to provide greater image uniformity than provided in the prior art.” ’273 patent, col. 2, II. 38-39. Additionally, that interpretation aligns with the conventional understanding of the term in the MRI industry. MRIDC’s expert, Dr. Peter Roemer, explained that a substantially uniform magnetic field “means a sufficient uniformity to give a good image.” Dr. Roemer also was able to give a quantitative estimate for the amount of field variation allowable that would “produce good images over a wide range of imaging sequences,” putting that variation at around 200 percent. Medrad’s expert refused to give quantitative estimates for the amount of field variation allowable. Rather, in defining substantial uniformity, Medrad’s expert, Ken Belt, could only refer to the field produced by a birdcage coil. As we stated above, the patent claims are not limited to the uniformity of field produced by a birdcage coil. Still, Mr. Belt’s testimony is implicitly consistent with Dr. Roemer’s definition. Specifically, Mr. Belt was giving the example of an RF coil capable of producing a good image. Therefore, we hold that the claim language, the specification, and the expert testimony all illustrate that a “substantially uniform magnetic field” is a field that is sufficiently uniform to obtain useful MRI images. B Medrad also disputes the meanings of the terms “first selectable state” and “first phased array coil,” but only for purposes of infringement. We do not need to construe those two claim terms because we agree with the district;court’s construction of the terms “region of interest” and “substantially uniform” and we agree, based on the district court’s construction of those terms, that Medrad’s asserted patent claims are invalid. 111 In his recommendation and report, the magistrate judge found that Medrad’s invention was anticipated by an abstract and presentation that Dr. Arne Reykowski delivered before a meeting of the Society of Magnetic Resonance. In that presentation, Dr. Reykowski described the"
},
{
"docid": "6753153",
"title": "",
"text": "LINN, Circuit Judge. On cross-motions for summary judgment the United States District Court for the District of New Jersey determined that Envirochem, Inc.’s (“Envirochem”) product line literally infringed claim 1 of Ecolab, Inc.’s (“Ecolab”) United States Reissue Patent No. 32,818 (the “'818 patent”). Ecolab, Inc. v. Amerikem Labs., Inc., 98 F.Supp.2d 569 (D.N.J. 2000) (infringement opinion) (“Ecolab I”). The district court also determined that neither equitable estoppel nor laches precluded Ecolab from obtaining an injunctive remedy against Envirochem for its literal infringement. Ecolab, Inc. v. Amerikem Labs., Inc., (D.N.J. Jan 8, 1999) (claim construction and equitable defenses opinion) (“Ecolab II”). Envirochem appeals both decisions. We conclude that the district court erred in construing the claim term “substantially uniform.” In view of this error, we vacate the grant of summary judgment of literal infringement, and remand to the district court for further proceedings not inconsistent with this opinion. As for the district court’s determination that neither estoppel nor laches precludes Ecolab from obtaining an injunction against Envirochem, we affirm. BACKGROUND The invention at issue is a solid detergent cast contained within a disposable container that surrounds the cast on all but one surface for use in commercial dish-washing machines. The main ingredients of the cast are alkali caustics, e.g., sodium hydroxide, and water conditioners — also called hardness sequestering agents, e.g., sodium tripolyphosphate. In particular, claim 1 recites: 1. A detergent-containing article of commerce comprising: (a) a three-dimensional, solid, cast, hydrated, substantially uniform alkaline detergent for ware and hard surface washing comprising: (1) at least about 30% by weight of an alkaline hydratable chemical consisting essentially of alkali metal hydroxide; (2) an effective amount of a hardness-sequestering agent; (3) water of hydration, at least a portion of said water of hydration being associated with said alkali metal hydroxide, wherein the alkali metal hydroxide and the hardness sequestering agent are present in an amount sufficient to render the cast detergent a solid at room temperature by virtue of the water of hydration; and (b) a receptacle-shaped disposable container surrounding and in contact with said solid, cast, hydrated alkaline detergent composition on all"
},
{
"docid": "6753166",
"title": "",
"text": "prior art ... [and that a] substantially uniform product meant less segregation in the ingredients and similar solubility throughout the entire cast, which in turn resulted in chlorine stability in the wash solution throughout the life of the cast.” Id. at 13. Next, the court examined the prosecution history noting that Ecolab pointed out the homogeneity problems of highly alkaline detergent products unless flaked or granular-ized immediately from a melt. Moreover, the court noted that Ecolab presented the Tinker affidavit to show the problems in casting homogeneous prior art composition versus the claimed composition. Thus, the court concluded that Ecolab’s efforts in obtaining allowance of its claims were directed at defining “its patent claim in a manner reflecting that its casts consisted of a homogeneous composition of elements from top-to-bottom, and therefore, Eco-lab’s process and casts had solved the problems associated with the prior art.” Id. at 14. It was the foregoing analysis that prompted the district court to ultimately construe the phrase “substantially uniform” to mean “a level of continuity of the elements from top-to-bottom throughout the cast such that a homogeneous cleaning solution is formed over the life of the cast.” Id. at 16. Envirochem urges that the court’s definition does not provide a meaningful standard against which infringement can be judged because at one extreme it requires absolute uniformity in composition of the cast and at the other extreme no uniformity, i.e., even a perfectly nonuniform cast would provide a “homogeneous” solution if the entire cast were dissolved in water. Envirochem contends on appeal that the proper construction of “substantially uniform” in view of the Tinker affidavit is that the top-to-bottom variation of ingredients in the cast does not exceed 5.57% on a relative basis. Arguing against Enviro-chem’s asserted definition, Ecolab contends that a numerical limitation on the range of the ingredients in the cast from top-to-bottom is inappropriate because the claim language does not present any basis for inferring an unwritten numerical range, and because the claims, specification, and prosecution history do not evince an intent to impart such a novel meaning to the phrase “substantially"
},
{
"docid": "8094626",
"title": "",
"text": "Inc., 52 F.3d 967, 979-81 (Fed.Cir.1995). A As Mr. Misic explained, the ’273 patent sought to address how to make the time-varying magnetic field spatially uniform across the imaged area in an arrangement with overlapping RF coils. A uniform magnetic field is a benefit to magnetic resonance imaging because it “provides greater image uniformity.” ’273 patent, col. 2, II. 38-39. The patent solves that problem by pulsing the current to the overlapping coils with a phase delay. Id., col. 5, II. 56-57. When an appropriate delay is applied to the pulses, the magnetic field from one coil partially constructively interferes and partially deconstructively interferes with the magnetic field from the second coil in the overlap region “to provide the most uniform transmit field possible.” Id., col. 6, II. 6-7. The main dispute among the parties is how uniform the magnetic field has to be and over what spatial extent, or region of interest. 1. The district court defined the claim term “region of interest” as “the portion of the body that is being scanned.” Medrad insists that such a definition is inconsistent with the purpose of the invention, which is to make it possible to take MRI images over overlapping coils. See id., col. 5, II. 49-52. In other words, as claim 1 states, the invention concerns a phased array “for forming images of a region of interest” and a phased array must include at least two coils. Thus, Medrad maintains it is impossible to define “region of interest” in such a way that permits the region of interest to be located within only one coil, as the district court’s definition implicitly does. Medrad therefore urges us to construe the region of interest as the entire three-dimensional volume of the coil array system or, at the very least, the portion of the patient’s anatomy lying within both coils. Medrad’s restrictive construction fails for a number of reasons. First, the claim calls for “phased array coils”; it does not call for a phased array. The coils may act in certain instances as a phased array, but that does not mean they"
},
{
"docid": "6753176",
"title": "",
"text": "15.0 19.4 19.3 III top 11.8 bottom 15.5 2.3 0.5 15.0 22.0 22.0 IV top 9.3 bottom 41.3 6.3 2.5 34.0 45.2 43.9 V top 32.3 bottom 32.3 32.3 32.3 34.0 33.6 32.3 We note that Tinker asserted that the data demonstrated a significant difference in alkalinity and tripolyphosphate concentration between the top and bottom quarter of the casts of the prior art compositions, i.e., Formulae I TV, but not in the claimed composition, i.e., Formula V. The data were not obtained by measuring the homogeneity of the cleaning solution formed after spraying the exposed surface of the cast with water. Rather, it was gathered by measuring the concentrations of these ingredients in the top and bottom quarters of the casts. Consequently, there is nothing in the Tinker affidavit requiring that the nonfunctional phrase “substantially uniform” be limited functionally. We recognize that the patentee states in the written description that a cast detergent prepared according to the invention had a “very uniform chlorine recovery” as compared to a conventional powdered detergent. '818 patent, Figure 5 and col. 22, 11. 61-65. Moreover, we agree with Ecolab that the term “very uniform” is more restrictive than “substantially uniform.” However, the uniformity of the delivery of chlorine to the effluent does not aid our interpretation of the uniformity of the distribution of ingredients throughout the cast when there are no functional constraints on the terms “substantially” or “uniform.” Consequently, any percentage difference in chlorine recovery of the claimed invention versus the prior art determined from Figure 5 of the '818 patent has no bearing on the percentage difference that “substantially uniform” would encompass as it relates to the distribution of ingredients throughout the cast. We disagree with Envirochem that the Tinker affidavit limits the meaning of “substantially uniform” numerically, at least to the extent of what is “substantially uniform.” Nowhere in the affidavit is it asserted that Formula V, made according to the claimed invention, is “the invention.” Thus, while the percentage difference of the components from top-to-bottom of Formula V is within the scope of “substantially uniform,” that percentage difference does not"
},
{
"docid": "6753165",
"title": "",
"text": "160 F.3d 1350, 1353, 48 USPQ2d 1674, 1676 (Fed.Cir.1998). The standard of review for both laches and equitable estoppel is abuse of discretion. A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1028, 22 USPQ2d 1321, 1325 (Fed.Cir.1992) (en banc). This court may reverse a discretionary decision if that decision rests on an erroneous interpretation of law or clearly erroneous factual underpinnings. Id. at 1039, 960 F.2d 1020, 22 USPQ2d at 1333. II. Analysis A. Claim Construction In arriving at the ultimate claim construction of the phrase “substantially uniform,” the district court noted that the “claim language makes clear the '818 patent protects a detergent cast containing ... [the particularly recited ingredients] in a manner such that the active elements are present throughout the cast without significant variation in the amounts of each ingredient.” Ecolab II, slip op. at 12. The court then looked to the written description and noted that “the ‘substantially uniform’ nature of Ecolab’s cast was advanced as a solution to the problems associated with the casts • of the prior art ... [and that a] substantially uniform product meant less segregation in the ingredients and similar solubility throughout the entire cast, which in turn resulted in chlorine stability in the wash solution throughout the life of the cast.” Id. at 13. Next, the court examined the prosecution history noting that Ecolab pointed out the homogeneity problems of highly alkaline detergent products unless flaked or granular-ized immediately from a melt. Moreover, the court noted that Ecolab presented the Tinker affidavit to show the problems in casting homogeneous prior art composition versus the claimed composition. Thus, the court concluded that Ecolab’s efforts in obtaining allowance of its claims were directed at defining “its patent claim in a manner reflecting that its casts consisted of a homogeneous composition of elements from top-to-bottom, and therefore, Eco-lab’s process and casts had solved the problems associated with the prior art.” Id. at 14. It was the foregoing analysis that prompted the district court to ultimately construe the phrase “substantially uniform” to mean “a level of continuity of the elements from"
},
{
"docid": "8094625",
"title": "",
"text": "interest” to refer to the portion of the patient’s body being scanned and the claim term “substantially uniform first magnetic field” to mean “a sufficient uniformity to give a good image,” the magistrate judge concluded that all of the elements of the invention were found in the cited prior art. The magistrate judge rejected Medrad’s argument on invalidity because he concluded that Medrad’s proposed definitions of the pertinent claim terms were “not supported by the ordinary use of the language or the language of the ’273 patent.” In addition to granting summary judgment of invalidity, the district court denied the motion for a preliminary injunction and dismissed the motion for summary judgment of noninfringement as moot. For purposes of invalidity, the parties contest the court’s construction of the terms “substantially uniform magnetic field” and “region of interest.” For purposes of infringement and the preliminary injunction, the parties additionally contest the court’s construction of the terms “selectable state” and “phased array coil.” We review the district court’s construction of claims de novo. Markman v. Westview Instruments, Inc., 52 F.3d 967, 979-81 (Fed.Cir.1995). A As Mr. Misic explained, the ’273 patent sought to address how to make the time-varying magnetic field spatially uniform across the imaged area in an arrangement with overlapping RF coils. A uniform magnetic field is a benefit to magnetic resonance imaging because it “provides greater image uniformity.” ’273 patent, col. 2, II. 38-39. The patent solves that problem by pulsing the current to the overlapping coils with a phase delay. Id., col. 5, II. 56-57. When an appropriate delay is applied to the pulses, the magnetic field from one coil partially constructively interferes and partially deconstructively interferes with the magnetic field from the second coil in the overlap region “to provide the most uniform transmit field possible.” Id., col. 6, II. 6-7. The main dispute among the parties is how uniform the magnetic field has to be and over what spatial extent, or region of interest. 1. The district court defined the claim term “region of interest” as “the portion of the body that is being scanned.” Medrad"
},
{
"docid": "8094632",
"title": "",
"text": "on this court’s interpretation of the same term in Ecolab, Inc. v. Envirochem, Inc., 264 F.3d 1358 (Fed.Cir.2001). Ecolab involved a patent for a solid detergent cast used in commercial dish-washing machines. The disputed claim term described the cast as a “substantially uniform alkaline detergent for ware and hard surface washing.” The district court construed “substantially uniform” in that case to mean “a level of continuity of the elements from top-to-bottom throughout the case such that a homogenous cleaning solution is formed over the life of the cast.” Id. at 1365. This court reversed. We noted that the claim at issue was entirely structural and contained no functional limitations. In particular, we explained, the claim contained “no claimed functional requirement as to forming a homogeneous wash solution throughout the cast life,” other than for the detergent “to contain components capable of ‘ware and hard surface washing.’ ” Id. at 1366. In that setting, we held that there was “no basis on which to require adding a functional limitation” under the guise of construing the term “substantially uniform.” A more appropriate definition, we held, would be “largely, but not wholly the same in form.” Id. at 1369. A particular term used in one patent need not have the same meaning when used in an entirely separate patent, particularly one involving different technology. In fact, there are many situations in which the interpretations will necessarily diverge. A patentee may define a particular term in a particular way, and in that event the term will be defined in that fashion for purposes of that particular patent, no matter what its meaning in other contexts. See Hormone Research Found., Inc. v. Genentech, Inc., 904 F.2d 1558, 1563 (Fed.Cir.1990). Moreover, claim terms are typically given their ordinary and accustomed meaning as understood by one of ordinary skill in the pertinent art, and the generally understood meaning of particular terms may vary from art to art. Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1332 (Fed.Cir.2001); Dow Chem. Co. v. Sumitomo Chem. Co., 257 F.3d 1364, 1372 (Fed.Cir.2001). Even, absent an express definition of"
},
{
"docid": "8094637",
"title": "",
"text": "guidance. The term “substantially uniform first magnetic field” is ambiguous in that it fails to suggest how much a magnetic field may deviate from absolute uniformity before it is no longer uniform. That question is especially significant because Medrad’s own expert admits that “magnetic field strength varies routinely in all RF coil systems.” Medrad implicitly acknowledged the difficulty created by the use of the term “substantially uniform,” and it contended before the magistrate judge that a substantially uniform magnetic field is one that is similar to the magnetic field produced by a “single birdcage coil.” There is, however, no support anywhere in the record for that construction. Medrad apparently employed that construction because a birdcage coil is the “gold standard” for coils that generate uniform magnetic fields. But the patent itself rebuts Medrad’s suggestion that a substantially uniform magnetic field is comparable to that produced by a birdcage coil. The specification states that RF coils may be “crossed saddle quadrature coils or Helmholtz pairs.” ’273 patent, col. 6, II. 15-17. Yet Medrad’s own expert admitted that crossed saddle quadrature coils or Helmholtz pairs cannot produce magnetic fields as uniform as a birdcage coil, so by its terms the patent encompasses coils that are not as uniform as birdcage coils. A “claim construction that does not encompass a disclosed embodiment is ... rarely, if ever, correct.” Johns Hopkins Univ. v. CellPro, 152 F.3d 1342, 1355 (Fed.Cir.1998). Thus, the construction that Medrad proposed to the magistrate judge fails as well. The only guidance for the definition of “substantially uniform” in the claim language comes from the preamble, which claims an “imaging system for forming images of a region of interest.” Both parties’ experts agreed that it is important to remove inhomogeneities in the magnetic field generated by the RF coils, or the resulting MRI images will be permanently distorted. As Mr. Misic explained, if the coils do not uniformly transmit, the contrast in the images suffers: “it makes things look different” and “you can’t re-correct that after the fact.” The problem of image distortion puts an upper bound on the degree of"
},
{
"docid": "8094641",
"title": "",
"text": "construction of an MRI device that consisted of two overlapping phased-array coils used tó image a patient’s neck and head. The magistrate judge also found that the coil itself qualified .as prior art due to public use. On appeal, Medrad asserts that the Rey-kowski references do not anticipate the patent because Dr. Reykowski’s device does not produce a substantially uniform magnetic field over the region of interest. In particular, Medrad contends that Dr. Reykowski’s device does not generate a uniform magnetic field either in the coil that mainly encompasses the patient’s neck or in the overlapping region of the two coils. Medrad simply asserts that the neck coil cannot transmit a uniform magnetic field and points to a spatial plot of the field strength produced by the neck coil. However, this is no argument at all, as we cannot decipher whether the level of inhomogeneity shown in the plot is small enough that a useful MRI image can be produced using Dr. Reykowski’s device, especially over the region of interest, which in this case is the neck and lower portion of the head of the patient. In fact, it appears that the coil produces a substantially uniform field because Dr. Reykow-ski’s device actually allowed him to take useful MRI images of the neck in practice. In reply, Medrad makes two contentions. First, Medrad states that Dr. Rey-kowski admitted that his neck coil cannot produce a uniform magnetic field. That, however, is a mischaracterization of Dr. Reykowski’s testimony. He stated only that his neck coil produced a less homogenous field than his head coil. He vigorously denied that the neck coil produced a non-uniform field or that the field could not result in useful MRI images of the neck. Second, Medrad claims that even if the neck coil produced a sufficiently uniform field to obtain useful MRI images, the overlapping region of the two coils did not produce a uniform magnetic field. In making that argument, Medrad is apparently contending that the magnetic field strength generated by Dr. Reykowski’s device jumps when going from the region of one coil to the"
},
{
"docid": "8094634",
"title": "",
"text": "a term in the specification or prosecution history, or a clearly established understanding of the meaning of the term in the art, the manner in, which the term is used in the patent may dictate a definition that differs from the definition that would be given to the same term in a different patent with a different specification or prosecution history. See Young Dental Mfg. Co. v. Q3 Special Prods., Inc., 112 F.3d 1137, 1143 (Fed.Cir.1997) (“The specification that is relevant to claim construction is the specification of the patent in which the claims reside.”). That is the situation in the present case. The use of a term in a patent on a detergent is of little pertinence to the use of a similar term in a patent on MRI RF coils. Rather, absent some particular reason to do otherwise, the claim terms must be interpreted as would one of ordinary skill in the art of MRI technology and in light of the particular patent in suit. Apart from arguing that the Ecolab court’s definition of “substantially uniform” should be applied in this case, Medrad invokes the Ecolab case in support of the broad proposition that it is never proper for a court, when construing claim terms, to consider how a claimed device functions. That is an overreading of Ecolab, however. The Ecolab court found no reason to import the requirement that the substantially uniform cast create a homogeneous cleaning solution over the life of the cast. Ecolab, 264 F.3d at 1369. In so doing, the court set forth and applied the unremarkable proposition that where a function “is not recited in the claim itself by the paten-tee, we do not import such a limitation.” Ecolab, 264 F.3d at 1367. Medrad has taken the quoted language from Ecolab and extended it to reach a nonsensical result. Medrad argues that a court may not look to how an invention functions in determining the meaning of claim terms. Yet nothing in Ecolab or any other precedent of this court supports such a proposition, which is as unsound as it is sweeping. As"
},
{
"docid": "8094630",
"title": "",
"text": "substantial support within the patent. The preamble of claim 1 states that the invention is “for forming images of a region of interest.” In describing the process of forming such images, the specification states that the invention “can be used for imaging a knee, a foot, an ankle, a wrist or a hand.” ’273 patent, col. 5, II. 36-38. Those examples strongly point to the “region of interest” as being the portion of the anatomy being imaged. Furthermore, the patent lists, as an object of the invention, providing “a method that eliminates soft tissue artifacts ... created by prior art methods for imaging various regions of interest.” Id., col. 2, II. 31-33. The reference to the problem created by having “soft tissue” in the region of interest also suggests that the region of interest is a portion of the body being imaged. In addition, the reference to “forming images of a region of interest” forecloses Medrad’s proposed definition of the region of interest as referring to the geometry of the cells alone, since an arbitrary position within the coils forms no image until a portion of the body is placed within it. ■Finally, the evidence before the court established that persons of ordinary skill in the art would concur with the court’s definition. Medrad’s own expert agreed with the definition that the region of interest is “whatever particular part the doctor is attempting to image.” MRIDC’s expert concurred, stating that “the region of interest [ ] is the part of the anatomy that they would be interested in viewing.” 2. The district court defined a “substantially uniform magnetic field” as a magnetic field that is “substantially uniform to obtain useful MRI images.” Medrad proposes that a substantially uniform magnetic field is a magnetic field “that has largely, but not wholly, the same form throughout.” Although Medrad may have waived that construction by arguing it to the district court only after the magistrate judge made his recommendation, we do not have to decide the waiver issue because we agree with the magistrate judge’s definition. Medrad .bases its construction of “substantially uniform”"
},
{
"docid": "8094640",
"title": "",
"text": "produced by a birdcage coil. Still, Mr. Belt’s testimony is implicitly consistent with Dr. Roemer’s definition. Specifically, Mr. Belt was giving the example of an RF coil capable of producing a good image. Therefore, we hold that the claim language, the specification, and the expert testimony all illustrate that a “substantially uniform magnetic field” is a field that is sufficiently uniform to obtain useful MRI images. B Medrad also disputes the meanings of the terms “first selectable state” and “first phased array coil,” but only for purposes of infringement. We do not need to construe those two claim terms because we agree with the district;court’s construction of the terms “region of interest” and “substantially uniform” and we agree, based on the district court’s construction of those terms, that Medrad’s asserted patent claims are invalid. 111 In his recommendation and report, the magistrate judge found that Medrad’s invention was anticipated by an abstract and presentation that Dr. Arne Reykowski delivered before a meeting of the Society of Magnetic Resonance. In that presentation, Dr. Reykowski described the construction of an MRI device that consisted of two overlapping phased-array coils used tó image a patient’s neck and head. The magistrate judge also found that the coil itself qualified .as prior art due to public use. On appeal, Medrad asserts that the Rey-kowski references do not anticipate the patent because Dr. Reykowski’s device does not produce a substantially uniform magnetic field over the region of interest. In particular, Medrad contends that Dr. Reykowski’s device does not generate a uniform magnetic field either in the coil that mainly encompasses the patient’s neck or in the overlapping region of the two coils. Medrad simply asserts that the neck coil cannot transmit a uniform magnetic field and points to a spatial plot of the field strength produced by the neck coil. However, this is no argument at all, as we cannot decipher whether the level of inhomogeneity shown in the plot is small enough that a useful MRI image can be produced using Dr. Reykowski’s device, especially over the region of interest, which in this case is"
},
{
"docid": "6753159",
"title": "",
"text": "for violating the consent judgment in the earlier suit. The motion was denied and converted to a motion for a preliminary injunction. Ecolab, Inc. v. Amerikem Labs., Inc., No. 90-4712 (D.N.J. May 31, 1996) (preliminary injunction) (“Ecolab III ”). The distinct court (Barry, J.) found in particular that Ecolab had not shown that it was likely to carry its burden of proving that Envirochem’s accused products were “substantially uniform” within the meaning of claim 1. Ecolab III, slip op. at 17. Ecolab asserted that “substantially uniform” means “containing effective amounts of phosphate and alkali sources throughout the cast so as to ensure the product’s effectiveness.” Id. at 11. In other words, according to Ecolab, if Envirochem’s products work effectively at all times, they must be substantially uniform. Id. The court expressly rejected Ecolab’s construction noting that the phrase “ ‘substantially uniform’ clearly implies some degree of uniformity rather than simply a degree of effectiveness.” Id. at 12. The court also rejected Envirochem’s asserted definition of “homogeneity throughout the cast” because that definition reads out the term “substantially.” Id. The court construed the phrase “substantially uniform” as describing “a cast in which the concentration of alkalinity and phosphates may vary from between 0.0% and 6.6%.” Id. at 13-14. The percentages were derived from data presented to the Patent and Trademark Office during prosecution in the “Tinker Affidavit” comparing the chemical composition of the claimed “substantially uniform” product and several prior art solid cast compositions. In view of that claim construction, Envi-rochem moved for summary judgment of noninfringement. The case was reassigned to Judge Greenaway, who denied Envirochem’s motion in view of a wholly new claim construction. Ecolab II, slip op. at 17-19. Judge Greenaway reconstrued the term “substantially uniform” to mean “a level of continuity of the elements from top-to-bottom throughout the cast such that a homogeneous cleaning solution is formed over the life of the cast.” Id. at 16. Judge Greenaway also granted an outstanding motion by Ecolab for partial summary judgment dismissing Envirochem’s defenses of equitable estoppel and laches. Id. at 22. The court found that Enviro-chem could not"
},
{
"docid": "8094624",
"title": "",
"text": "formed of a plurality of electrically conductive members and defining a first array volume; a second phased array coil formed of a second plurality of electrically conductive members and defining a second array volume, said second phased array coil disposed at least partially within the first array volume, said first and second array phased array coils cooperating to define a coil subsystem; and a coil interface subsystem operably coupled to the coil subsystem, said coil interface subsystem, in a first selectable state, processing RF power such that a substantially uniform first magnetic field is applied to the region of interest, and, in a second selectable state, receiving a response of the region of interest to the first magnetic field. The district court granted summary judgment of invalidity of the six asserted claims based on its construction of certain terms in those claims. The magistrate judge’s report and recommendation, on which the district court’s ruling was predicated, found that Medrad’s invention was anticipated by a prior art publication and invention. Interpreting the claim term “region of interest” to refer to the portion of the patient’s body being scanned and the claim term “substantially uniform first magnetic field” to mean “a sufficient uniformity to give a good image,” the magistrate judge concluded that all of the elements of the invention were found in the cited prior art. The magistrate judge rejected Medrad’s argument on invalidity because he concluded that Medrad’s proposed definitions of the pertinent claim terms were “not supported by the ordinary use of the language or the language of the ’273 patent.” In addition to granting summary judgment of invalidity, the district court denied the motion for a preliminary injunction and dismissed the motion for summary judgment of noninfringement as moot. For purposes of invalidity, the parties contest the court’s construction of the terms “substantially uniform magnetic field” and “region of interest.” For purposes of infringement and the preliminary injunction, the parties additionally contest the court’s construction of the terms “selectable state” and “phased array coil.” We review the district court’s construction of claims de novo. Markman v. Westview Instruments,"
},
{
"docid": "8094631",
"title": "",
"text": "position within the coils forms no image until a portion of the body is placed within it. ■Finally, the evidence before the court established that persons of ordinary skill in the art would concur with the court’s definition. Medrad’s own expert agreed with the definition that the region of interest is “whatever particular part the doctor is attempting to image.” MRIDC’s expert concurred, stating that “the region of interest [ ] is the part of the anatomy that they would be interested in viewing.” 2. The district court defined a “substantially uniform magnetic field” as a magnetic field that is “substantially uniform to obtain useful MRI images.” Medrad proposes that a substantially uniform magnetic field is a magnetic field “that has largely, but not wholly, the same form throughout.” Although Medrad may have waived that construction by arguing it to the district court only after the magistrate judge made his recommendation, we do not have to decide the waiver issue because we agree with the magistrate judge’s definition. Medrad .bases its construction of “substantially uniform” on this court’s interpretation of the same term in Ecolab, Inc. v. Envirochem, Inc., 264 F.3d 1358 (Fed.Cir.2001). Ecolab involved a patent for a solid detergent cast used in commercial dish-washing machines. The disputed claim term described the cast as a “substantially uniform alkaline detergent for ware and hard surface washing.” The district court construed “substantially uniform” in that case to mean “a level of continuity of the elements from top-to-bottom throughout the case such that a homogenous cleaning solution is formed over the life of the cast.” Id. at 1365. This court reversed. We noted that the claim at issue was entirely structural and contained no functional limitations. In particular, we explained, the claim contained “no claimed functional requirement as to forming a homogeneous wash solution throughout the cast life,” other than for the detergent “to contain components capable of ‘ware and hard surface washing.’ ” Id. at 1366. In that setting, we held that there was “no basis on which to require adding a functional limitation” under the guise of construing the term"
},
{
"docid": "8094636",
"title": "",
"text": "we stated in Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed.Cir.1998), “ultimately, the interpretation to be given a term can only be determined and confirmed with a full understanding of what the inventors actually invented and intended to envelop with the claim.” It is therefore entirely proper to consider the functions of an invention in seeking to determine the meaning of particular claim language. Medrad would have us look at the words of the claim with no context of what an RF coil does and how it works. We have repeatedly rejected that approach. “We cannot look at the ordinary meaning of the term ... in a vacuum. Rather, we must look at the ordinary meaning in the context of the written description and the prosecution history.” DeMarini Sports, Inc. v. Worth, 239 F.3d 1314, 1324 (Fed.Cir.2001); see also K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1365 (Fed.Cir.1999). The record in the instant case makes it clear that the district court’s construction was correct. Unfortunately, the claim itself provides little guidance. The term “substantially uniform first magnetic field” is ambiguous in that it fails to suggest how much a magnetic field may deviate from absolute uniformity before it is no longer uniform. That question is especially significant because Medrad’s own expert admits that “magnetic field strength varies routinely in all RF coil systems.” Medrad implicitly acknowledged the difficulty created by the use of the term “substantially uniform,” and it contended before the magistrate judge that a substantially uniform magnetic field is one that is similar to the magnetic field produced by a “single birdcage coil.” There is, however, no support anywhere in the record for that construction. Medrad apparently employed that construction because a birdcage coil is the “gold standard” for coils that generate uniform magnetic fields. But the patent itself rebuts Medrad’s suggestion that a substantially uniform magnetic field is comparable to that produced by a birdcage coil. The specification states that RF coils may be “crossed saddle quadrature coils or Helmholtz pairs.” ’273 patent, col. 6, II. 15-17. Yet Medrad’s own expert admitted"
},
{
"docid": "6753167",
"title": "",
"text": "top-to-bottom throughout the cast such that a homogeneous cleaning solution is formed over the life of the cast.” Id. at 16. Envirochem urges that the court’s definition does not provide a meaningful standard against which infringement can be judged because at one extreme it requires absolute uniformity in composition of the cast and at the other extreme no uniformity, i.e., even a perfectly nonuniform cast would provide a “homogeneous” solution if the entire cast were dissolved in water. Envirochem contends on appeal that the proper construction of “substantially uniform” in view of the Tinker affidavit is that the top-to-bottom variation of ingredients in the cast does not exceed 5.57% on a relative basis. Arguing against Enviro-chem’s asserted definition, Ecolab contends that a numerical limitation on the range of the ingredients in the cast from top-to-bottom is inappropriate because the claim language does not present any basis for inferring an unwritten numerical range, and because the claims, specification, and prosecution history do not evince an intent to impart such a novel meaning to the phrase “substantially uniform.” In support of the district court’s construction, Ecolab relies on Laitram Corp. v. Cambridge Wire Cloth, 863 F.2d 855, 858, 9 USPQ2d 1289, 1293 (Fed.Cir.1988), and asserts that descriptive claim terms that are not limited numerically are commonly defined according to the purpose or function of the invention. In this case, Ecolab asserts that the function of the invention is to provide sufficient alkalinity and sufficient phosphate to effectively clean the dishes and soften the water throughout the life of the product. We agree with the reasoning expressed and the conclusion reached by the district court that no basis exists for inferring a numerical limitation as to what is a “substantially uniform” cast. However, we hold that the district court erred as to the proper construction of the phrase “substantially uniform.” That error was in: (1) defining nonnumerically limited claim terms according'to the purpose of the invention; (2) not giving the phrase “substantially uniform” its ordinary and accustomed meaning; and (3) not recognizing the proper relevance and effect of the Tinker affidavit on the"
},
{
"docid": "8094638",
"title": "",
"text": "that crossed saddle quadrature coils or Helmholtz pairs cannot produce magnetic fields as uniform as a birdcage coil, so by its terms the patent encompasses coils that are not as uniform as birdcage coils. A “claim construction that does not encompass a disclosed embodiment is ... rarely, if ever, correct.” Johns Hopkins Univ. v. CellPro, 152 F.3d 1342, 1355 (Fed.Cir.1998). Thus, the construction that Medrad proposed to the magistrate judge fails as well. The only guidance for the definition of “substantially uniform” in the claim language comes from the preamble, which claims an “imaging system for forming images of a region of interest.” Both parties’ experts agreed that it is important to remove inhomogeneities in the magnetic field generated by the RF coils, or the resulting MRI images will be permanently distorted. As Mr. Misic explained, if the coils do not uniformly transmit, the contrast in the images suffers: “it makes things look different” and “you can’t re-correct that after the fact.” The problem of image distortion puts an upper bound on the degree of nonuniformity allowable in the magnetic field, which is part of an “imaging system for forming- images of a region of interest.” That interpretation is further supported by the specification, which gives as an object of the invention “to provide greater image uniformity than provided in the prior art.” ’273 patent, col. 2, II. 38-39. Additionally, that interpretation aligns with the conventional understanding of the term in the MRI industry. MRIDC’s expert, Dr. Peter Roemer, explained that a substantially uniform magnetic field “means a sufficient uniformity to give a good image.” Dr. Roemer also was able to give a quantitative estimate for the amount of field variation allowable that would “produce good images over a wide range of imaging sequences,” putting that variation at around 200 percent. Medrad’s expert refused to give quantitative estimates for the amount of field variation allowable. Rather, in defining substantial uniformity, Medrad’s expert, Ken Belt, could only refer to the field produced by a birdcage coil. As we stated above, the patent claims are not limited to the uniformity of field"
}
] |
280241 | by carrier competition was forbidden. But that construction was rejected by this Court, Wight v. United States, 167 U.S. 512, 517; United States v. Illinois Central R. Co., supra; Merchants Warehouse Co. v. United States, supra, for the same reason that the present construction should be rejected — that although carrier competition was not destroyed by the Interstate Commerce Act, it was limited by the prohibition of § 3 of those discriminations which, in the light of all the circumstances, are found to be undue or unreasonable. The statute does not purport to prohibit all discriminations. It reaches only those against either localities or shippers which result in prejudice which is “ undue or unreasonable.” Cf. REDACTED Hence, in determining whether a discrimination involved in a port equalization is “ undue or unreasonable,” competition is a factor which may not be ignored (see Interstate Commerce Comm’n v. Alabama Midland Ry., 168 U.S. 144, 170); the Commission is not to leave out of account either past history or practical experience, or the effect of the discrimination on the ports concerned. But even though the exigencies of competition may be entitled to greater consideration in a case of discrimination between ports than in one of discrimination between shippers, the weight which is given to it and to the other relevant facts, in determining whether the discrimination is so unjust as to be forbidden, does not go to the Commission’s power but | [
{
"docid": "17271875",
"title": "",
"text": "rates, must rest upon a finding of illegal preference resulting from the relation of intrastate to interstate rates. Preference to governmental shippers is expressly permitted by § 22 of. the act. Hence, a grant of such preference cannot be held to be unjust or unreasonable under §§ 2 and 3. There was no finding that these lower intrastate rates resulted in failure of the intrastate traffic to yield its proper share of the earnings of the carriers. Consequently, the order of the Commission is void. The argument is, in our opinion, unsound. Every rate which gives preference or advantage to certain persons, commodities, localities or traffic is discriminatory. For such preference prevents absolute equality of treatment among all shippers or all travelers. But discrimination is not necessarily unlawful. The Act to Regulate Commerce prohibits (by §§ 2 and 3) only that discrimination which is unreasonable, undue, or unjust. Texas & Pacific Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, 219, 220; Manufacturers Ry. Co. v. United States, 246 U. S. 457, 481. Whether a preference or discrimination is undue, unreasonable or unjust is ordinarily left to the Commission for decision; and the determination is to be made, as a question of fact, on the matters proved in the particular case. Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 U. S. 144, 170. The Commission may conclude that the preference given is not unreasonable, undue or unjust, since it does not, in fact, result in any prejudice or disadvantage to any other person, locality, commodity or class of traffic. On the other hand, preferential treatment of a class, ordinarily harmless, may become undue, because, under the special circumstances, it results in prejudice, or disadvantage to some other person, commodity, or locality, or to interstate commerce. Section 22 must in this matter, as in others, be read in connection with the rest of the act, and be interpreted with due regard to its manifest purpose. Robinson v. Baltimore & Ohio R. R. Co., 222 U. S. 506, 511. Congress did not intend, by this provision concerning reduced rates and"
}
] | [
{
"docid": "18142042",
"title": "",
"text": "construction of § 2 which would preclude the Commission from setting aside a difference in a separately stated service charge which in fact operates to discriminate unjustly among shippers. We have repeatedly sustained a finding of the Commission that such a difference, based on a difference in identity of shippers or the ownership of the goods shipped, or on other circumstances irrelevant to the carrier service rendered, is an unjust discrimination to shippers. Wight v. United States, supra; Interstate Commerce Commission v. Delaware, L. & W. R. Co., supra; Interstate Commerce Commission v. Baltimore & Ohio R. Co., supra; Seaboard Air Line Ry. Co. v. United States, supra; Louisville & Nashville R. Co. v. United States, supra; Merchants Warehouse Co. v. United States, supra. The distinction between those cases and this is that here the difference in the service charge is made between through shippers over different routes, and is based on relevant differences in the “circumstances and conditions” of the total transportation services rendered by the carriers. It was within the competence of the Commission to find that this involved no unjust discrimination. This is not to say that in every case where the differences in total transportation services rendered are such as would justify a greater charge to one than to another shipper, the difference in charge can at the carrier’s option be made in the charge for an accessorial service such as the loading service here involved. But the decision whether the circumstances and conditions are such as to justify a difference in the accessorial charge, or rather to require that any adjustment be made in the line-haul charge, is one which the statute has left to the determination of the Commission, which Congress has entrusted with the power and duty of guarding against the prohibited favoritism. In the circumstances of this case, we cannot set aside, as lacking in rational basis, the Commission’s determination that the reduction in the line-haul cost to the shipper effected by remission of the loading charge did not result in an unjust discrimination. It is no answer to this determination of"
},
{
"docid": "22207583",
"title": "",
"text": "undue or unjust discrimination for the trunk lines to refuse to absorb the Railway’s charges and thereby extend their flat St. Louis rates to the territory served by the Railway, while doing so with respect to the territory served by the Terminal, is contrary to the indisputable character of the testimony and inconsistent in law with the very facts found by the Commission. To this we cannot accede. It is not any and every discrimination, preference, and prejudice that are denounced by the Commerce Act. Section 3 (Act of February 4, 1887, c. 104, 24 Stat. 379, 380) renders unlawful any “undue or unreasonable” preference or advantage, prejudice or disadvantage. In the same section the requirement of “all reasonable, proper, and equal facilities for the interchange of traffic” is qualified so as not to require one' carrier to give the use of its tracks or terminal facilities to another. And in the first paragraph. of amended § 15 (36 Stat. 551) it is rates, regulations, or practices that in the opinion of the Commission are “unjustly discriminatory, or unduly preferential or prejudicial,” etc., to which the prohibition is to be applied. Whether a preference or advantage or discrimination is undue or unreasonable or unjust is one of those questions of fact that have been confided by Congress to the judgment and discretion of the Commission (Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 U. S. 144, 170), and upon which its decisions, made the basis of administrative orders operating' in futuro, are not to be disturbed by the courts except upon a showing that they are unsupported by evidence, were made without a hearing, exceed constitutional limits, or for some other reason amount to an abuse, of power. This results from the provisions of §§ 15 and 16 of the Commerce Act as amended in 1906 and 1910 (34 Stat. 589-591, c. 3591; 36 Stat. 551-554, c. 309), expounded in familiar decisions. Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S. 452, 469-470; Interstate Commerce Commission v. Union Pacific R. R. Co., 222 U. S. 541,"
},
{
"docid": "18142036",
"title": "",
"text": "Section 2 of the Act declares it to be an “unjust” and prohibited discrimination for any carrier “directly or indirectly, by any special rate, rebate, drawback, or other device,” to charge one person more or less than another for “a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and con ditions.” It is undoubted that the loading service here involved is a transportation service to which § 2 applies. § 1 (3) (a); Merchants Warehouse Co. v. United States, 283 U. S. 501, 511. Section 2 is aimed at the prevention of favoritism among shippers. See Sharfman, Interstate Commerce Commission, vol. III-B, pp. 360-61. Where the transportation services are rendered under substantially similar conditions the section has been thought to prohibit any differentiation between shippers on the basis of their identity, Interstate Commerce Commission v. Baltimore & Ohio R. Co., 225 U. S. 326, 342; Interstate Commerce Commission v. Delaware, L. & W. R. Co., 220 U. S. 235, 252, or on the basis of competitive conditions which may induce a carrier to offer a reduction in rate to one shipper while denying it to another similarly situated. Wight v. United States, 167 U. S. 512, 516-18; Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 U. S. 144, 166. Compare Seaboard Air Line Ry. Co. v. United States, 254 U. S. 57, 62. But differences in rates as between shippers are prohibited only where the “circumstances and conditions” attending the transportation service are “substantially similar.” Whether those circumstances and conditions are sufficiently dissimilar to justify a difference in rates, or whether, on the other hand, the difference in rates constitutes an unjust discrimination because based primarily on considerations relating to the identity or competitive position of the particular shipper rather than to circumstances attending the transportation service, is a question of fact for the Commission’s determination. Hence its conclusion that in view of all the relevant facts and circumstances a rate or practice either is or is not unjustly discriminatory within the meaning of § 2 of the Act will"
},
{
"docid": "23286447",
"title": "",
"text": "person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful.” See Interstate Commerce Commission v. Baltimore & O. R. Co., 145 U. S. 263, 280; Interstate Commerce Commission v. Alabama Midland R. Co., 168 U. S. 144, 166; Barringer & Co. v. United States, 319 U. S. 1, 6. See note 3, supra. “It shall be unlawful for any common carrier subject to the provisions of this part to make, give, or cause any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traf fic, in any respect whatsoever; or to subject any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever . . . .” “The Milwaukee and the Illinois Central join in rates from the Princeton and Boonville groups to these northern Illinois destinations which reflect differences between those groups on the one hand, and the Brazil and Linton points served by those two respondents on the other, that are substantially greater than the so-called standard differentials and greater than are warranted by the respective differences in distance.” The Commission in determining maximum reasonable rates from the Fulton-Peoria group to Iowa destinations developed the so-called Midland scale. See Midland Electric Coal Corp. v. Chicago & N. W. R. Co., 232 I. C. C. 5. It used the so-called Indiana-Illinois scale for the same purpose in connection with certain Indiana groups to eastern-central Illinois destinations. See Coal Trade Assn. v. Baltimore & O. R. Co., 190 I. C. C. 743. In the present case the Commission made certain adjustments in those scales, see 263 I. C. C. at 186, and used them in the comparison of"
},
{
"docid": "23164938",
"title": "",
"text": "form as well as in any other. The argument seems to be that the statute cannot be deemed to forbid unjust discriminations against ports since if it did aff rates to competing ports not measured by mileage or, carrier service would be forbidden whether unjust or not. With equal plausibility it was argued that because competition between carriers was an established practice before the enactment of § 3 and is not forbidden by the Act, no discrimination induced by carrier competition was forbidden. But that construction was rejected by this Court, Wight v. United States, 167 U.S. 512, 517; United States v. Illinois Central R. Co., supra; Merchants Warehouse Co. v. United States, supra, for the same reason that the present construction should be rejected — that although carrier competition was not destroyed by the Interstate Commerce Act, it was limited by the prohibition of § 3 of those discriminations which, in the light of all the circumstances, are found to be undue or unreasonable. The statute does not purport to prohibit all discriminations. It reaches only those against either localities or shippers which result in prejudice which is “ undue or unreasonable.” Cf. Nashville, C. & St. L. Ry. v. Tennessee, 262 U.S. 318, 322. Hence, in determining whether a discrimination involved in a port equalization is “ undue or unreasonable,” competition is a factor which may not be ignored (see Interstate Commerce Comm’n v. Alabama Midland Ry., 168 U.S. 144, 170); the Commission is not to leave out of account either past history or practical experience, or the effect of the discrimination on the ports concerned. But even though the exigencies of competition may be entitled to greater consideration in a case of discrimination between ports than in one of discrimination between shippers, the weight which is given to it and to the other relevant facts, in determining whether the discrimination is so unjust as to be forbidden, does not go to the Commission’s power but to the propriety of it's exercise. United States v. Illinois Central R. Co., supra, 525; Interstate Commerce Comm’n v. Alabama Midland Ry.,"
},
{
"docid": "18142037",
"title": "",
"text": "conditions which may induce a carrier to offer a reduction in rate to one shipper while denying it to another similarly situated. Wight v. United States, 167 U. S. 512, 516-18; Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 U. S. 144, 166. Compare Seaboard Air Line Ry. Co. v. United States, 254 U. S. 57, 62. But differences in rates as between shippers are prohibited only where the “circumstances and conditions” attending the transportation service are “substantially similar.” Whether those circumstances and conditions are sufficiently dissimilar to justify a difference in rates, or whether, on the other hand, the difference in rates constitutes an unjust discrimination because based primarily on considerations relating to the identity or competitive position of the particular shipper rather than to circumstances attending the transportation service, is a question of fact for the Commission’s determination. Hence its conclusion that in view of all the relevant facts and circumstances a rate or practice either is or is not unjustly discriminatory within the meaning of § 2 of the Act will not be disturbed here unless we can say that its finding is unsupported by evidence or without rational basis, or rests on an erroneous construe tion of the statute. Seaboard Air Line Ry. Co. v. United States, supra, 62; Interstate Commerce Commission v. Delaware, L. & W. R. Co., supra, 251-2; Louisville & Nashville R. Co. v. United States, 282 U. S. 740, 758; Merchants Warehouse Co. v. United States, supra, 508; Baltimore & Ohio R. Co. v. United States, 305 U. S. 507, 524. In considering the circumstances and conditions attending the transportation service, the Commission was not required to ignore the fact that the loading charges, although separately stated in the tariffs, are in each case a component part of the total line-haul cost to the shipper and inseparable from it. All the carrier loading costs not compensated for by the loading charges, if any, to shippers, are necessarily absorbed by the carrier out of the line-haul charges which shippers pay. The loading charge is not paid until the line haul is completed"
},
{
"docid": "23513245",
"title": "",
"text": "dissimilar in circumstances and conditions, or whether the opposite is true, as decided by the Commission. The circumstances and conditions which may so far be considered as distinguishing traffics so as to take from different transportation charges the vice of preference have been described by this court. In Wight v. United States, 167 U. S. 512, 518, it is said: “It was the purpose of the section [2] to enforce equality between shippers, and it prohibits any rebate or other device'by which two shippers, shipping over the same line, the same distance, under the same circumstances of carriage, are compelled to pay different prices therefor.” These words are given more precision by the declaration “that the phrase, cunder substantially similar circumstances and conditions,’ as found in section 2, refers to matters of carriage, and does not include competition.” And this was repeated in Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 U. S. 144, 161, 166. The facts in both cases give significance to the rulings. In the first case the charges to the shippers were the same, but one was given extra facilities; in the second case the extraneous effect of competition was excluded as an element in the application of the section. There is also example in Interstate Commerce Commission v. Delaware, L. & W. R. R. Co., 220 U. S. 235. It was there held that a carrier could not look beyond goods tendered to it for transportation in carload lots “to the ownership of the shipment” as the basis for determining the application of its established rates. Do the circumstances and conditions in this case give a greater power of discrimination and justify the lower charge to railroad-fuel coal? It is admitted that the fact that a railroad is the shipper or consumer is not a circumstance or condition that affects the carriage, nor can the different uses to which the coal may be put, and it would seem necessarily that any other extraneous condition or circumstance could have no greater potency. Once depart from. the clear directness of what relates to the carriage only"
},
{
"docid": "23164937",
"title": "",
"text": "railroads, before the enactment of the statute, had in some instances attempted to equalize competing ports by setting up a rate structure which did not conform wholly to the carrier service involved, and as Congress, in the Interstate Commerce Act evinced no intention to prevent competition for business between sail carriers, it could not have intended by this legislation forbidding discrimination prejudicial to localities to forbid discriminations between rival ports, however unreasonable and injurious. The port differentials and equalizations maintained prior to the passage of the original act, in order to secure a fair distribution of traffic among the Atlantic ports and the carriers serving them, were very different in quality and prejudicial effect upon the localities concerned from the rate structure resulting in the discrimination disclosed here. The existence of those equalizations before 1887 and the fact that in some instances since that date they have been regarded as innocuous even by the Commission itself, can hardly lend support to the supposition that the statute was not intended to forbid destructive discriminations in that form as well as in any other. The argument seems to be that the statute cannot be deemed to forbid unjust discriminations against ports since if it did aff rates to competing ports not measured by mileage or, carrier service would be forbidden whether unjust or not. With equal plausibility it was argued that because competition between carriers was an established practice before the enactment of § 3 and is not forbidden by the Act, no discrimination induced by carrier competition was forbidden. But that construction was rejected by this Court, Wight v. United States, 167 U.S. 512, 517; United States v. Illinois Central R. Co., supra; Merchants Warehouse Co. v. United States, supra, for the same reason that the present construction should be rejected — that although carrier competition was not destroyed by the Interstate Commerce Act, it was limited by the prohibition of § 3 of those discriminations which, in the light of all the circumstances, are found to be undue or unreasonable. The statute does not purport to prohibit all discriminations. It"
},
{
"docid": "23164887",
"title": "",
"text": "such, but solely to obtain or retain business for the carrier’s own line. With the abstract -fairness of such ad justment neither the Commission nor the courts have any concern. This is not to say, however, that the rates promulgated are beyond the Commission’s jurisdiction. While that body has no control over the ocean rate, it has power to compel a. reasonable charge for the rail. haul. Compare Armour Packing Co. v. United States, 153 Fed. 1; News Syndicate Co. v. New York Central R. Co., 275 U. S. 179, 186-7. As the carriers are in competition for the business they may, within the zone of reasonableness, prescribed by the statute, adjust their rates so as to obtain or retain the desired traffic for their own lines. Interstate Commerce Comm’n v. Alabama Midland Ry. Co., 74 Fed. 715, 723-4; 168 U.S. 144, 172-3; Skinner & Eddy Corp. v. United States, 249 U.S. 557, 564; United States v. Illinois Central R. Co., 263 U.S. 515, 522. The theory of the Act is that the carriers in initiating rates may adjust them to competitive conditions, and that such action does not amount to undue discrimination; Texas & Pacific Ry. Co. v. Interstate Commerce Comm’n, 162 U.S. 197. There the charging of rates on import traffic moving from a port on through bills of lading, much lower than those fixed for domestic transportation, was-held'not to amount as matter of law to discrimination forbidden by § 3. The carrier showed, in justification of the lower rates on import traffic, that unless these were permitted water and rail-and-water competition would divert the traffic away from the port of New Orleans and the.carrier’s lines extending from that port. Since that decision it has been recognized- that export and import shipments, although not made on through bills, might lawfully be transported at rates below those charged for domestic traffic between* the same points. The same purpose not to .stifle competition justifies relief under § 4 from the prohibition against charging the same or less for a longer than for a shorter haul. Interstate Commerce Comm’n v. Baltimore"
},
{
"docid": "23164890",
"title": "",
"text": "Commission may not compel. Southern Pac. Co. v. Interstate Commerce Comm’n, 219 U.S. 433, 444; Interstate Commerce Comm’n v. Diffenbaugh, 222 U.S. 42, 46; Ellis v. Interstate Commerce Comm’n, 237 U.S. 434, 445; United States v. Illinois Central R. Co., 263 U.S. 515, 524; At chison T. & S. F. Ry. v. Interstate Commerce Comm’n, 190 Fed. 591) Anchor Coal Co. v. United States, 25 F. (2d) 462, 471. In the light of the facts exhibited by the record and the principles underlying the Act, are ports, in respect of export, import and coastwise traffic, localities susceptible of undue preference or prejudice within the meaning of § 3? The purpose of §§ 2, 3 and 4, as exhibited by committee reports and explained by those in charge of the bill in Congress, was to prevent unjust discrimination resulting from existing practices. Similar commodities were, without reason or excuse, carried at different rates. Shippers similarly situated were put on unequal terms. Producers and consumers at points of origin and destination were prejudiced by unequal treatment in the matter of rates or service. Obviously localities of origin or destination might also be prejudiced by undue discrimination. One of the most prevalent and reprehensible practices at which the Act was aimed was the charging of a less or an equal rate for a longer haul upon the same line or route. The Act was passed for the protection of those who pay or bear the rates. The standards it establishes are transportation standards, not criteria of general welfare. The word “localities,” therefore, has its proper office as denoting the origin or destination of traffic and the shipping, producing, and consuming areas affected by rates and practices of carriers. The term was, however, not intended to cover a junction, a way station, a gateway, or a port, as respects traffic passing through it. Considered as points of origin or destination any or all of these are localities within the.purview of the section. All of them may, moreover, though not considered as localities served, be involved in acts of discrimination. The situation here presented furnishes"
},
{
"docid": "22220741",
"title": "",
"text": "been in the past reasonable and just. Cincinnati, New Orleans & Texas Pacific Railway v. Interstate Commerce Commission, 162 U. S. 184; Interstate Commerce Commission v. Cincinnati, New Orleans & Texas Pacific Railway, 167 U. S. 479. ■ Errors are likewise assigned to the action of the court in having failed and refused to affirm and enforce the report and opinion of the Commission, wherein it was found and decided, among other things, that the defendants, common carriers which participate in the transportation of class goods to Troy from Louisville, St. Louis and Cincinnati, and from New York, Baltimore and other Northeastern points, and the defendants, common carriers which participate in the transportation of phosphate rock from South Carolina and Florida to Troy, and the defendants, common carriers which participate in the transportation of cotton from Troy to the ports of New Orleans, Brunswick, Savannah, Charleston, West Point or Norfolk, as local shipments or for export, have made greater charges, under substantially similar circumstances and conditions, for the shorter distance to or from Troy than for longer distances over the same lines in the same direction, and have unjustly discriminated in rates against Troy, and subjected said place, and dealers and shippers therein to undue and unreasonable prejudice and disadvantage in favor of Montgomery, Eufaula, Columbus and other places and localities and dealers and shippers therein, in violation of the provisions of the act to regulate commerce. Whether competition between lines of transportation to Montgomery, Eufaula and Columbus justifies the giving to those cities a preference or advantage in rates over Troy, and, if so, whether such a state of facts justifies a departure from equality of rates without authority from the Interstate Commerce Commission under the proviso to the fourth section of • the act, are questions of construction of the statute, and are to be determined before we reach the question of fact in this case. It is contended, in the.briefs filed on behalf of the Interstate Commission, that the existence of rival lines of transportation and, consequently, of competition for the traffic, are not facts to be"
},
{
"docid": "22287123",
"title": "",
"text": "is inherently reasonable, and that the rate from competing points is not shown to be unreasonably low, does not establish that the discrimination is just. Both rates may lie within the zone of reasonableness and yet result in undue prejudice. American Express Co. v. Caldwell, 244 U. S. 617, 624. Every factor urged by the carriers as justifying the higher rate from Knoxo appears to have been considered by the Commission. How much weight shall be given to each must necessarily be left to it. The Commission found, among other things, that the cost of the service from Knoxo was not greater than the cost of the transportation from many other points which enjoy the lower ratd; that the value of the service was the same; and that other traffic conditions incident to shipment from Knv >xo were so similar to thosé of shipments from other poiiits enjoying a lower rate that the prejudice to which the Swift Lumber Company had been subjected was undue and. unreasonable. The innocent character of the discrimination practiced by the. Illinois Central was not established, as a matter of law, by showing that the preferential rate was given to others for the purpose' of developing traffic on the carrier’s own lines or of securing competitive traffic. These were factors to be considered by the Commission; but they did not preclude a finding that the discrimination practiced is unjust. Such was the law even before Transportation Act 1920. Texas & Pacific Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, 218, 220; Interstate Commerce Commission v. Alabama Midland Ry., 168 U. S. 144, 167, 175. In view of the policy and provisions of that statute, the Commission may properly have concluded that the carrier’s desire to originate traffic on its own lines, or to take traffic from a competitor, should not be given as much weight in determining the justness of a discrimination against a locality as theretofore. For now, the interests of the individual carrier must yield in many respects to the public need, Railroad Commission of Wisconsin v. Chicago, Burlington & Quincy"
},
{
"docid": "23164889",
"title": "",
"text": "& Ohio R. Co., 145 U.S. 263, 276; Interstate Commerce Comm’n v. Alabama Midland Ry. Co., 168 U.S. 144, 164; Louisville <& N. R. Co. v. Behlmer, 175 U.S. 648, 671; Intermountain Rate Cases, 234 U.S. 476, 483-485, And relief under the Fourth Section has been granted on this ground in respect of export and import fates. Export and Import Rates, 169 I.C.C. 13. While the carriers may, therefore, meet competition by equalizing rates or maintaining differentials both to interior points and to ports, they may not adjust their rates with the motive of injuring or aiding a shipper, a particular kind of traffic, or a locality, for so to do is to depart from the transportation standard, conformity to which the Act contemplates, and substitute others which are prohibited; A tariff published for the purpose of destroying a market or building up one, of diverting traffic from a particular place to the injury of that place, or in aid of some other, is unlawful; and obviously, what the carrier may not lawfully do, the Commission may not compel. Southern Pac. Co. v. Interstate Commerce Comm’n, 219 U.S. 433, 444; Interstate Commerce Comm’n v. Diffenbaugh, 222 U.S. 42, 46; Ellis v. Interstate Commerce Comm’n, 237 U.S. 434, 445; United States v. Illinois Central R. Co., 263 U.S. 515, 524; At chison T. & S. F. Ry. v. Interstate Commerce Comm’n, 190 Fed. 591) Anchor Coal Co. v. United States, 25 F. (2d) 462, 471. In the light of the facts exhibited by the record and the principles underlying the Act, are ports, in respect of export, import and coastwise traffic, localities susceptible of undue preference or prejudice within the meaning of § 3? The purpose of §§ 2, 3 and 4, as exhibited by committee reports and explained by those in charge of the bill in Congress, was to prevent unjust discrimination resulting from existing practices. Similar commodities were, without reason or excuse, carried at different rates. Shippers similarly situated were put on unequal terms. Producers and consumers at points of origin and destination were prejudiced by unequal treatment in"
},
{
"docid": "23164930",
"title": "",
"text": "234 U.S. 342, 346. • Nor does' the Court consider material, in this respect, the findings of the Commission that the rates to Texas ports and New Orleans are both reasonable to shippers, in that the former are not too high, or the latter so low as to cast a burden on other traffic. For it is not denied that the Commission may remove a discrimination effected by rates which are within the zone of reasonableness if the discrimination is one forbidden by § 3 (1) of the Act. American Express Co. v. Caldwell, 244 U.S. 617; United States v. Illinois Central Ry. Co., 263 U.S. 515, 524. It is not suggested that a discrimination effected by reasonable rates may not result in gross injury to the locality discriminated against; and the opinion does not question the correctness of the findings here that such injury is inflicted on the Texas ports by the prohibited rates. The issue is thus narrowed to two' questions, first, whether the acts of Congress giving broad powers to the Commission to remove discriminations resulting in undue or unreasonable prejudice to a “ locality,” have conferred any power on the Commission to curtail an unduly prejudicial discrimination agaiffst a port, and second, whether, assuming that the Corfimission has such power, it may order the removal of the discrimination by the appellant .carriers who participate in the discriminatory rates, although their rails reach only New Orleans, and not the Texas ports. First. The Court holds that this power is lacking because the locality injured by the discrimination, a port, is neither .the origin nor the ultimate destination of the traffic involved, but a gateway through which it passes, albeit it is arrested there pending its transshipment upon a new and independent contract for ocean transportation. It is said that a gateway is not a “ locality ” within the meaning of the Act because it was never intended that the statute should forbid discrimination against localities which are not points of origin or ultimate destination, however unreasonable and unjust the discrimination may be. The words of the"
},
{
"docid": "23164939",
"title": "",
"text": "reaches only those against either localities or shippers which result in prejudice which is “ undue or unreasonable.” Cf. Nashville, C. & St. L. Ry. v. Tennessee, 262 U.S. 318, 322. Hence, in determining whether a discrimination involved in a port equalization is “ undue or unreasonable,” competition is a factor which may not be ignored (see Interstate Commerce Comm’n v. Alabama Midland Ry., 168 U.S. 144, 170); the Commission is not to leave out of account either past history or practical experience, or the effect of the discrimination on the ports concerned. But even though the exigencies of competition may be entitled to greater consideration in a case of discrimination between ports than in one of discrimination between shippers, the weight which is given to it and to the other relevant facts, in determining whether the discrimination is so unjust as to be forbidden, does not go to the Commission’s power but to the propriety of it's exercise. United States v. Illinois Central R. Co., supra, 525; Interstate Commerce Comm’n v. Alabama Midland Ry., supra. That the Commission so conceives its powers and function in considering a rate adjustment equalizing ports, is apparent from its statement of the problem in the present case: “ Such an adjustment necessarily disregards distance and commercial instead of natural advantages control. Wé have consistently refused to condemn such an adjustment where it is shown to serve the best interests of the public, but where, as here, it builds up one port at the expense of another equally favored by natural advantages from the origin territory here considered, a line must be found beyond which distance may not be disregarded.” This language of the Commission appears to me to suggest the only reasonable interpretation of the statute consonant with its language, its history and its background. The statute does not command or the Commission’s order direct that the rates shall be measured exclusively by mileagb or carrier service; carrier competition for business passing through gateways or elsewhere is not forbidden; but when the discrimination goes so far beyond;' the line of reasonableness as to"
},
{
"docid": "23164888",
"title": "",
"text": "initiating rates may adjust them to competitive conditions, and that such action does not amount to undue discrimination; Texas & Pacific Ry. Co. v. Interstate Commerce Comm’n, 162 U.S. 197. There the charging of rates on import traffic moving from a port on through bills of lading, much lower than those fixed for domestic transportation, was-held'not to amount as matter of law to discrimination forbidden by § 3. The carrier showed, in justification of the lower rates on import traffic, that unless these were permitted water and rail-and-water competition would divert the traffic away from the port of New Orleans and the.carrier’s lines extending from that port. Since that decision it has been recognized- that export and import shipments, although not made on through bills, might lawfully be transported at rates below those charged for domestic traffic between* the same points. The same purpose not to .stifle competition justifies relief under § 4 from the prohibition against charging the same or less for a longer than for a shorter haul. Interstate Commerce Comm’n v. Baltimore & Ohio R. Co., 145 U.S. 263, 276; Interstate Commerce Comm’n v. Alabama Midland Ry. Co., 168 U.S. 144, 164; Louisville <& N. R. Co. v. Behlmer, 175 U.S. 648, 671; Intermountain Rate Cases, 234 U.S. 476, 483-485, And relief under the Fourth Section has been granted on this ground in respect of export and import fates. Export and Import Rates, 169 I.C.C. 13. While the carriers may, therefore, meet competition by equalizing rates or maintaining differentials both to interior points and to ports, they may not adjust their rates with the motive of injuring or aiding a shipper, a particular kind of traffic, or a locality, for so to do is to depart from the transportation standard, conformity to which the Act contemplates, and substitute others which are prohibited; A tariff published for the purpose of destroying a market or building up one, of diverting traffic from a particular place to the injury of that place, or in aid of some other, is unlawful; and obviously, what the carrier may not lawfully do, the"
},
{
"docid": "16399552",
"title": "",
"text": "that where a carrier receives from any person a greater compensation for any service rendered in the transportation of passengers or property than it receives from any other person for doing for him a ‘like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination,’ a discrimination which is prohibited and declared to be unlaw ful. Under this section it is settled that the competition of rival carriers as such does not constitute substantially dissimilar circumstances to justify a difference in treatment.” We are of opinion that the Commission was correct in regarding the service in question as a like and contemporary service rendered under substantially similar circumstances and conditions, and amply sustained as matter of law in Wight v. United States, 167 U. S. 512, and Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 U. S. 144. The principle established in these cases is that the statute aims to establish equality of rights among shippers for carriage under substantially similar circumstances and conditions, and that the exigencies of competition do not justify discrimination against shippers for substantially like services. Moreover the determination of questions of fact is by law imposed upon the Commission, a body created by statute for the consideration of this and like matters. The findings of fact by the Commission upon such questions can be disturbed by judicial decree only in cases where their action is arbitrary or transcends the legitimate bounds of their authority. Interstate Commerce Commission v. Louisville & Nashville R. R. Co., 227 U. S. 88; Pre-Cooling Case, 232 U. S. 199; Los Angeles Switching Case, 234 U. S. 294, 311, 312, and cases cited; Pennsylvania Company v. United States, 236 U. S. 351, 361. The Commission did not hold that switching charges must be always the same. But it did hold that they must be alike where the service was rendered under substantially similar circumstances and conditions. The Commission’s report says: “We do not consider that the carriers must absorb the switching charges"
},
{
"docid": "22287124",
"title": "",
"text": "the. Illinois Central was not established, as a matter of law, by showing that the preferential rate was given to others for the purpose' of developing traffic on the carrier’s own lines or of securing competitive traffic. These were factors to be considered by the Commission; but they did not preclude a finding that the discrimination practiced is unjust. Such was the law even before Transportation Act 1920. Texas & Pacific Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, 218, 220; Interstate Commerce Commission v. Alabama Midland Ry., 168 U. S. 144, 167, 175. In view of the policy and provisions of that statute, the Commission may properly have concluded that the carrier’s desire to originate traffic on its own lines, or to take traffic from a competitor, should not be given as much weight in determining the justness of a discrimination against a locality as theretofore. For now, the interests of the individual carrier must yield in many respects to the public need, Railroad Commission of Wisconsin v. Chicago, Burlington & Quincy R. R. Co., 257 U. S. 563; New England Divisions Case, 261 U. S. 184; and the newly conferred power to grant relief against rates unreasonably low may afford protection against injurious rate-policies of a competitor, which were theretofore uncontrollable. The order of the Commission was not an attempt to establish its own policy of rate-making. See Southern Pacific Co. v. Interstate Commerce Commission, 219 U. S. 433; Interstate Commerce Commission v. Union Pacific R. R. Co., 222 U. S. 541, 554. It merely expressed, the judgment of the Commission that existing rates subjected shippers' from Knoxo to undue prejudice. The judgment so exercised, being supported by ample evidence, is conclusive. Third. The Fernwood & Gulf contends that the order is obnoxious to the due process clause. The argument is that even its present division of 4 cents per 100 pounds is unremunerative; and that a smaller return would be confiscatory. To this argument there are several answers. The order does-not require a reduction of the through rate. It may be complied with by raising"
},
{
"docid": "18142060",
"title": "",
"text": "A carrier which is loading in Oklahoma one car of cotton for a southeastern mill and another car of cotton for a Gulf port is certainly performing a “like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions.” A carrier which is loading two cars at the same time, on the same siding, with the same commodity is indeed performing the same service under the same circumstances and conditions. To charge the first shipper for loading his car and to load the other one free would be to impair the rule of equality which § 2 was designed to inaugurate. Interstate Commerce Commission v. Delaware, L. & W. R. Co., 220 U. S. 235; Louisville & Nashville R. Co. v. United States, 282 U. S. 740, 749-750. The result in the present case is a gross discrimination against shippers to the Southeast. There may be cases of special charges for special services where the validity of the rate under § 2 is dependent on whether the line-haul conditions are the same. Yet § 2, though primarily related to the line-haul, is not restricted to it. Merchants Warehouse Co. v. United States, supra. At least where the service in question is purely accessorial, § 2 is applicable though the line-hauls are not over the same line, for the same distance and to the same destination. Where § 2 is applicable, competitive factors (such as those on which the Commission relied) are no justification for the discrimination. Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 17. S. 144, 166; Interstate Commerce Commissions. Baltimore & Ohio R. Co., 225 U. S. 326, 342; Seaboard Air Line Ry. Co. v. United States, 254 U. S. 57, 62; Absorption of Loading Charge, 161 I. C. C. 389, 391; Allowance for Driving Horses, 227 I. C. C. 387, 389. The justification under § 2 for “unequal rates must rest in the facts of carriage and not in the financial interests of the carrier.” Sharfman, The Interstate Commerce Commission, Pt. 3, Vol. B, p. 371. There are,"
},
{
"docid": "18142047",
"title": "",
"text": "v. Albers Commission Co., 223 U. S. 573, 596-7, as precluding a carrier from performing an accessorial service free of charge provided no violation of any other section of the Act is shown. See Interstate Commerce Comm’n v. Stickney, 215 U. S. 98, 105. Nor does it preclude the Commission from considering the validity of the imposition or elimination of such a separately-stated charge in the light of its relationship to the through rate. Compare Atchison, T. & S. F. Ry. Co. v. United States, supra. What we have said of § 2 suffices also to dispose of the objection based on § 3 (1). That section makes it unlawful to give an “undue or unreasonable preference or advantage” to, or impose an “undue or unreasonable prejudice or disadvantage” on, any “person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic.” It differs from § 2 in that it may be availed of not only by shippers but by any other person who has been or may be injured by an inequality of rates. But the facts which we hold sufficient to justify the Commission’s finding that the elimination of the loading charge does not result in an unjust discrimination, are sufficient also to justify its finding that the elimination of that charge does not create an undue preference. Compare Clover Splint Coal Co. v. Louisville & Nashville R. Co., 197 I. C. C. 276, 277. We have frequently sustained the Commission’s determination, in cases arising under § 3, that differences in competitive conditions justify lower through rates over one route than over another. Texas & Pacific Ry. Co. v. United States, supra; Texas & Pacific Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, 205-217; Interstate Commerce Comm’n v. Chicago Great Western Ry. Co., 209 U. S. 108, 119, 121-2. We cannot say here, any more than under § 2, that the Commission could not regard the truck competition to the Southwest, and the relative rate structures, disclosed in its report, as sufficient to warrant the difference"
}
] |
358831 | in Fuller perhaps was reacting to dicta in Firestone, where the Supreme Court made the following observations: Trust principles make a deferential standard of review appropriate when a trustee exercises discretionary powers. See Restatement (Second) of Trusts § 187 (1959) (“Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion”). 489 U.S. at 111, 109 S.Ct. at 954. In the post-Firestone era, other circuits also have applied either the arbitrary and capricious standard or the abuse of discretion standard, with at least one court expressly finding the standards “interchangeabl[e].” REDACTED cert. denied, — U.S. -, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991). Similarly, the district court in this case declined to determine “the difference, if any, between an ‘abuse of discretion’ standard and an ‘arbitrary and capricious’ standard.” Lister v. Stark, 11 Employee Benefits Cas. (BNA) 1611, 1618, 1989 WL 88241 (N.D.Ill.1989). We are sympathetic to this unwillingness to split semantic hairs. Because the central issue before us is the construction of a disputed term in the Plan, we believe the district court took an appropriate course when it applied the standard found in the dicta from Firestone: “A trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee’s interpretation will | [
{
"docid": "22768490",
"title": "",
"text": "disavows any role as plan administrator. We leave reconciliation of this contradiction to Blue Cross. . Both Van Boxel and Jung, it should be noted, were cited by the Firestone Court. See 109 S.Ct. at 952, 953. While it is accurate to describe Firestone as having \"swept the standard of review board clear,” De Nobel v. Vitro Corp., 885 F.2d 1180, 1185 (4th Cir.1989), the effect of the opinion was in other respects unremarkable. “[T]he Court prescribed rules for judicial review of ERISA benefit denials which effectively supplanted all the lower court approaches ... — but without rejecting all the concepts of review embodied in those approaches.\" Id. (emphasis added). We have previously proceeded from this premise. See Jett, 890 F.2d at 1139; Guy, 877 F.2d at 38-39 (applying pre-Firestone principles concerning meaning of arbitrary and capricious standard); cf. Boyd v. Trustees of United Mine Workers Health & Retirement Funds, 873 F.2d 57, 60 (4th Cir.1989) (“It is obvious that to the extent it would be arbitrary and capricious under our pre-Firestone standard to deny benefits on such a basis, it would be an abuse of discretion to deny them under the Bruch standard.”); Lowry v. Bankers Life and Casualty Retirement Plan, 871 F.2d 522, 525 (reserving question whether abuse of discretion standard in Firestone “is equivalent to or less strict than our circuit’s preexisting arbitrary and capricious standard”), denying reh'g to 865 F.2d 692 (5th Cir.), cert. denied, — U.S. -, 110 S.Ct. 152, 107 L.Ed.2d 111 (1989); Batchelor v. International Bhd. of Elec. Workers Local 861 Pension & Retirement Fund, 877 F.2d 441, 444-48 (5th Cir.1989) (decision subsequent to Lowry which applies pre-Firestone Fifth Circuit arbitrary and capricious principles as guidance in applying Firestone’s abuse of discretion standard). For pre-Firestone cases finding that the action of a fiduciary was arbitrary or capricious, see Deak v. Masters, Mates & Pilots Pension Plan, 821 F.2d 572 (11th Cir.1987); Harris v. Pullman Standard, Inc., 809 F.2d 1495 (11th Cir.1987); McKnight v. Southern Life & Health Ins. Co., 758 F.2d 1566 (11th Cir.1985); Helms v. Monsanto Co., 728 F.2d 1416 (11th Cir.1984)."
}
] | [
{
"docid": "2252059",
"title": "",
"text": "plan summary can expand the plan administrator's authority. Although the plan summary states that the plan administrator has authority to interpret the Plan, the Plan itself is silent as to the plan administrator's discretionary authority. Because I decline to diminish the rights of plan participants based on the plan summary, especially where the plan summary conflicts with the Plan itself, I find that defendant has failed to prove that the Plan vested Peterson with discretionary authority. Therefore, Peterson's determination that plaintiffs did not qualify under the Plan for severance benefits must be reviewed under a de novo standard of review. Applying that standard, a host of material issues of fact remain in dispute. In fact, the parties hotly dispute whether plaintiffs' job duties and responsibilities were diminished materially after defendant's takeover of Irving. Therefore, defendant's motion for summary judgment must be denied. Moreover, even if the Plan did vest the plan administrator with discretionary authority, material issues of fact would preclude summary judgment. When a plan administrator is vested with discretion to interpret the plan, or to determine eligibility under the plan, courts apply a deferential standard of review to those discretionary determinations by the plan administrator. Prior to Firestone, courts almost uniformly applied an arbitrary-and-capricious standard of review. Since Firestone, some courts have reviewed plan administrators' discretionary determinations under an abuse-of-discretion standard in reliance on Firestone `s statement, in dictum, that \"[aJ trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee's interpretation will not be disturbed if reasonable.” 489 U.S. at 111, 109 S.Ct. at 954. However, as the Seventh Circuit recently stated, differentiating between the arbitrary-and-capricious standard and the abuse-of-discretion standard requires both a willingness and an ability “to split semantic hairs.” Lister v. Stark, 942 F.2d 1183, 1188 (7th Cir.1991); Diroma v. Nat’l Org. of Indus. Trade Unions Ins. Fund, 1992 WL 123177, at *7, 1992 U.S. Dist. LEXIS 7698, at *9 (S.D.N.Y. May 27, 1992) (“This court finds there is no substantive difference between the two formulations as they relate to the denial of benefits_”). In the case"
},
{
"docid": "4072676",
"title": "",
"text": "exercises discretionary powers. See Restatement (Second) of Trusts § 187 (1959) (“Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion”). 489 U.S. at 111, 109 S.Ct. at 954. In the post-Firestone era, other circuits also have applied either the arbitrary and capricious standard or the abuse of discretion standard, with at least one court expressly finding the standards “interchangeabl[e].” Brown v. Blue Cross & Blue Shield of Alabama, 898 F.2d 1556, 1558 n. 1 (11th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991). Similarly, the district court in this case declined to determine “the difference, if any, between an ‘abuse of discretion’ standard and an ‘arbitrary and capricious’ standard.” Lister v. Stark, 11 Employee Benefits Cas. (BNA) 1611, 1618, 1989 WL 88241 (N.D.Ill.1989). We are sympathetic to this unwillingness to split semantic hairs. Because the central issue before us is the construction of a disputed term in the Plan, we believe the district court took an appropriate course when it applied the standard found in the dicta from Firestone: “A trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee’s interpretation will not be disturbed if reasonable.” 489 U.S. at 111, 109 S.Ct. at 954. 2. Application to this case We are presented with a very narrow question in this case: Does the record before us reveal that there remains a genuine issue of triable fact as to whether the Committee’s interpretation of the Plan was unreasonable? This reasonableness standard requires, of course, that this court, like the district court, give great deference to the interpretation of the Committee. Yet, as our earlier cases teach, deference, even great deference, is not the equivalent of no review at all. A fiduciary “must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.'\" Reilly v. Blue Cross and Blue"
},
{
"docid": "22335309",
"title": "",
"text": "under ERISA. . We note that the standard of review in this case is, as it was in Firestone, concededly one of de novo. We do not address here the situation where the plan or trust instrument reserves to the administrator or fiduciary discretionary powers. In such cases, \"Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion.\" Firestone, 489 U.S. at 111, 109 S.Ct. at 954, quoting Restatement (Second) of Trusts § 187 (1959). . In support of this position, the Perry court cited Questech Inc. v. Hartford Accident & Indemnity Co., 713 F.Supp. 956, 962 (E.D.Va.1989), which applied our rulings regarding the scope of evidentiary review in Berry and Votiva v. Seafarers Pension Plan, 858 F.2d 195, 196 (4th Cir.1988), pre-Firestone cases, to the post-Firestone de novo standard of review. Perry, 900 F.2d at 966 n. 3. . In so doing, the court pointed out that the Seventh Circuit in Petrilli v. Drechsel, 910 F.2d 1441, 1445-47 (7th Cir.1990), also distinguished between evidence regarding historical facts and evidence relating to interpretation of the terms of a plan. . As recognized in Berry, remand to the plan administrator is also available to the district court, where necessary. We do not believe, however, that remand in every case of an inadequate record is consistent with the de novo standard of review or in the interests of judicial economy. For example, the district court may exercise its discretion to remand a claim where there are multiple issues and little evidentiary record to review. Application of the de novo standard, as opposed to the arbitrary and capricious standard in Berry, however, does not require such a result. . In Firestone, the Supreme Court chose not to base its enunciation of the standard of review in Firestone on the concern for impartiality and possible conflicts of interests which the Court of Appeals had expressed. 489 U.S. at 115, 109 S.Ct. at 956 (citing 828 F.2d at 143-146)."
},
{
"docid": "22800393",
"title": "",
"text": "the Restatement (Second) of Trusts and other trust law authorities to apply “[tjrust principles.” Firestone, 489 U.S. at 110-11, 109 S.Ct. 948. Firestone establishes that “[a]s they do with contractual provisions, courts construe terms in trust agreements without deferring to either party’s interpretation.” Id. at 112, 109 S.Ct. 948. That means that except where the plan gives the trustee discretion to interpret the terms of its trust, courts review trust provisions de novo, which is to say they decide for themselves what a term of the trust means instead of deciding whether the plan administrator was reasonable in how it construed the term. “ ‘The extent of the duties and powers of a trustee is determined by the rules of law that are applicable to the situation, and not the rules that the trustee or his attorney believes to be applicable, and by the terms of the trust as the court may interpret them, and not as they may be interpreted by the trustee himself or by his attorney.’ ” Firestone, 489 U.S. at 112, 109 S.Ct. 948 (quoting 3 W. Fratcher, Scott on Trusts § 201, at 221) (emphasis added by Firestone). Firestone holds that a deferential standard of review for actions by the trustee is “appropriate when the trustee exercises discretionary powers.” Id. at 111, 109 S.Ct. 948. Though the Court cites Restatement (Second) of Trusts § 187 for this proposition, the Court puts a slightly different gloss on the proposition than does the Restatement. The Restatement says that “exercise of a power is discretionary except to the extent to which its exercise is required by the terms of the trust or by the principles of law applicable to the duties of trustees.” Restatement (Second) of Trusts § 187 comment a (1959). Thus under the Restatement, in default of anything to the contrary, the trustee has discretion in the exercise of the powers the trust confers. But the Court holds in Firestone that “denial of benefits challenged under [29 U.S.C.] § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator"
},
{
"docid": "16903616",
"title": "",
"text": "The Court is required to make a de novo determination of those portions of the report or specified findings or recommendation as to which an objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the Report and Recommendation to which no objections are addressed. While the level of scrutiny entailed by the Court’s review of the Report thus depends on whether or not objections have been filed, in either case, the Court is free, after review, to accept, reject, or modify any of the magistrate judge’s findings or recommendations. Wallace v. Housing Auth. of the City of Columbia, 791 F.Supp. 137, 138 (D.S.C.1992) (citations omitted). In light of this standard, the Court has reviewed, de novo, the Report and objections thereto. The Court declines to accept the Report. STANDARD OF REVIEW The standard of review of a decision made by trustees of an ERISA benefit plan is ordinarily de novo. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Richards v. United Mine Workers of America Health and Retirement Fund, 895 F.2d 133, 135 (4th Cir.1990); de Nobel v. Vitro Corp., 885 F.2d 1180, 1186 (4th Cir.1989). However, where the plan gives the trustees discretion to determine benefit eligibility or to construe plan terms, the standard of review is whether the trustees abused that discretion. Firestone, supra, 489 U.S. at 111, 109 S.Ct. 948 (holding that trust principles make a deferential standard of review appropriate when a trustee exercises discretionary powers. Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse of discretion. A trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee’s interpretation will not be disturbed if reasonable.) Where the plan administrator does not have discretion to determine benefit eligibility, however, such decisions are reviewed de novo."
},
{
"docid": "22858003",
"title": "",
"text": "made a decision to benefit themselves rather than the plaintiff class, trust law permitted them to be beneficiaries of the plan. Therefore, as long as they were making discretionary decisions, the arbitrary and capricious standard of review applied. 3. The Scope of Review Over the Committee’s Interpretation In this case, Firestone itself gives us guidance as to the standard of review over the Committee’s interpretation of the plan. The Supreme Court’s analysis of trust law led it to the conclusion that “[a] trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee’s interpretation will not be disturbed if reasonable.” Firestone, 489 U.S. at 111, 109 S.Ct. at 954. This conclusion is in accord with general principles of trust law, which provide that “[w]here discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court, except to prevent an abuse by the trustee of his discretion.” Restatement (Second) of Trusts § 187. Indeed, in Central States, the Court gave significant weight to the trustees’ interpretation of the trust agreement, because “the trust agreement explicitly provide[d] that ‘any construction [of the agreement’s provisions] adopted by the Trustees in good faith shall be binding upon the Union, Employees and Employers.’ ” Central States, 472 U.S. at 568, 105 S.Ct. at 2839 (first alteration added). Here, the plan gave the Committee unfettered discretion to interpret its terms; it further provided that the Committee’s interpretations are conclusive. Thus, assuming that the Committee interpreted the plan, the arbitrary and capricious standard applies and we will disturb its interpretation only if its reading of the plan documents was unreasonable. In this regard, the Court of Appeals for the Eighth Circuit has enumerated a series of helpful factors to consider in determining whether an interpretation of a plan is reasonable: (1) whether the interpretation is consistent with the goals of the Plan; (2) whether it renders any language in the Plan meaningless or internally inconsistent; (3) whether it conflicts with the substantive or procedural requirements of the ERISA"
},
{
"docid": "22857996",
"title": "",
"text": "Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1558, 95 L.Ed.2d 39 (1987)), and in Firestone the Court further held that “[i]n determining the appropriate standard of review for actions under § 1132(a)(1)(B), we are guided by principles of trust law.” Id. at 111, 109 S.Ct. at 954. After examining the common law of trusts, the Court concluded that the language of the trust controls the ultimate standard of judicial review. Thus, “ ‘[w]here discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion.’ ” Id. (quoting Restatement (Second) of Trusts § 187 (1959)). However, where the trust agreement does not give the trustee power to construe uncertain provisions of the plan, or to make eligibility determinations, the trustee is.not entitled to deference and courts exercise de novo review. Id. at 111— 12, 109 S.Ct. at 955. Firestone’s analytical framework mandates a fresh look at the appropriate standard of review in light of the particular action being challenged. After all, Firestone seemed to require courts in all ERISA cases to examine the common law of trusts for guidance in determining the scope of review over a particular ERISA question. The situation is complicated, however, by Firestone’s caveat at its outset that “[t]he discussion which follows is limited to the appropriate standard of review in § 1132(a)(1)(B) actions challenging denials of benefits based on plan interpretations.” Id. at 108, 109 S.Ct. at 953. The Court then continued, “[w]e express no view as to the appropriate standard of review for actions under other remedial provisions of ERISA.” Id. A number of courts, relying on Firestone’s express limitation, have refused to apply the arbitrary and capricious standard of review to ERISA eases falling outside the category of claims for benefits even though the fiduciary involved had discretionary powers. For instance, in Ches v. Archer, 827 F.Supp.159 (W.D.N.Y.1993), the plaintiffs alleged that the plan administrators violated ERISA by refusing to enforce a contribution agreement"
},
{
"docid": "23148261",
"title": "",
"text": "v. Continental Ins. Co., 999 F.2d 1547, 1554 (11th Cir.1993). We therefore apply the same legal standards as those controlling the district court. Id. The standard that properly should have governed the district court’s evaluation of the Administrative Committee’s findings, however, is disputed by the parties. Paramore contends that, although the Administrative Committee’s interpretation of the Plan’s terms is subject to an arbitrary and capricious standard of review, the court should have reviewed the Administrative Committee’s factual determinations de novo. Delta responds that the court appropriately examined the propriety of the Administrative Committee’s factual and interpretive conclusions solely to ascertain whether the denial of benefits in this instance constituted either an abuse of discretion or an arbitrary and capricious resolution of Paramore’s claim. ERISA does not provide a standard to review decisions of a plan administrator. In Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court looked to the principles underlying trust law as largely defining the role and responsibilities of a plan fiduciary or administrator; more specifically, the Court reasoned that, “where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion.” Id. at 111, 109 S.Ct. at 954 (internal citation and quotation marks omitted). Applying these principles, the Court established a range of standards that pertain to benefits determinations under ERISA: a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.... Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a facto[r] in determining whether there is an abuse of discretion. Firestone, 489 U.S. at 115, 109 S.Ct. at 956-57 (citations and quotation marks omitted). Consistent with the Court’s directive in Firestone, we"
},
{
"docid": "980536",
"title": "",
"text": "trustees under ERISA may overturn the decision only if it is found to be arbitrary, capricious, made in bad faith, or in derogation of law. The District of Columbia Circuit follows this standard. Block v. Pitney Bowes Inc., 705 F.Supp. 20, 22 (D.D.C.1989) (citations omitted). Unless the above-quoted law of the circuit was changed by the Supreme Court’s decision in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), this panel, following established principles of stare decisis, should not take it upon itself to alter it. Although the courts of appeal that have considered the question are not in agreement concerning whether Firestone effected a change in the standard of review, I agree with those courts which hold that it has. See Jones v. Laborers Health & Welfare Trust Fund, 906 F.2d 480, 481 (9th Cir.1990); Batchelor v. Int’l Bhd. of Elec. Workers Local 861 Pension & Retirement Fund, 877 F.2d 441, 442-43 (5th Cir.1989); Boyd v. Trustees of the United Mine Workers Health & Retirement Funds, 873 F.2d 57, 59 (4th Cir.1989). The principal issue in the instant case is the same as was before the Supreme Court in Firestone, viz., “plan interpretation”. 489 U.S. at 108, 109 S.Ct. at 953. Was the administrators’ denial of benefits to Block based upon a correct interpretation of the term “total disability” as defined in the plan? The Firestone Court said that “ERISA abounds with the language and terminology of trust law”, and that “[i]n determining the appropriate standard of review for actions under § 1132(a)(1)(B), we are guided by principles of trust law.” Id. at 110-11, 109 S.Ct. at 953-54. It then quoted section 187 of the Restatement (Second) of Trusts, which states: “Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion.” Id. at 111, 109 S.Ct. at 954. A fair reading of the Court’s discussion that followed demonstrates that it adopted the American Law Institute’s"
},
{
"docid": "17398489",
"title": "",
"text": "argument that Blue Cross misinterpreted the plan in counting services towards the lifetime maximum, the court concludes a different standard applies. In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court explained that “ERISA abounds with the language and terminology of trust law” •and that “[t]rust principles' make a deferential standard of review appropriate when a trustee exercises discretionary powers.” Id. at 110-11, 109 S.Ct. 948. Under Firestone, “a trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee’s interpretation will not be disturbed if reasonable.” Id. at 111, 109 S.Ct. 948. The Court held that, “[A] denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Id. at 115, 109 S.Ct. 948. The court finds no reason not to apply Firestone’s trust principles to Express Oil’s particular breach of fiduciary duty claim, especially when the validity of Express Oil’s overpayment claim turns on the same plan interpretation as an Express Oil employee’s claim for a denial of benefits. See Firestone, 489 U.S. at 115, 109 S.Ct. 948 (“[T]he validity of a claim to benefits under an ERISA plan is likely to turn on the interpretation of the terms in the plan at issue.”). In fact, were Blue Cross to have denied benefits to Mr. Q, explaining that he had reached the lifetime maximum, Mr. Q could have at least alleged a suit under § 1132(a)(1). Express Oil’s claim appears to be the flip side of that coin, and, thus, reviewable under the- “arbitrary and capricious standard” if Blue Cross were vested with discretion in reviewing claims. Express Oil argues, however, that Blue Cross’s administration of the Q claim should be reviewed de novo. Under Firestone, de novo review applies unless the benefit plan gives an administrator discretionary authority to construe the terms of the plan. Firestone, 489 U.S. at 115, 109"
},
{
"docid": "22372562",
"title": "",
"text": "or administrator discretionary or final authority to construe uncertain terms, the court review^] the employee’s claim as it would ... any other contract claim — by looking to the terms of the plan and other manifestations of the parties’ intent.” Id. at 112— 13,109 S.Ct. 948. Thus, we have held that in deciding whether a plan provision for benefits is prescriptive or discretionary, we review the Plan’s language de novo. See Haley v. Paul Revere Life Ins. Co., 77 F.3d 84, 89 (4th Cir.1996). Similarly, in determining the scope of contractually conferred discretion and whether a fiduciary has acted within that scope, we act de novo. See id. When, however, a plan by its terms confers discretion on a fiduciary and the fiduciary acts within the scope of conferred discretion, we defer to the fiduciary in accordance with well-settled principles of trust law: “Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion.” Firestone, 489 U.S. at 111, 109 S.Ct. 948 (quoting Restatement (Second) of Trusts § 187 (1959)). Thus, a trustee’s discretionary decision will not be disturbed if reasonable, even if the court itself would have reached a different conclusion. See id.; de Nobel v. Vitro Corp., 885 F.2d 1180, 1185-86 (4th Cir.1989). A survey of our cases decided after Firestone reveals a certain ambiguity about the appropriate standard of review of a fiduciary’s discretionary decision— whether it is “abuse of discretion” or “arbitrary and capricious” and whether the two standards are equivalent. In a number of decisions we stated expressly that we were not prepared to decide whether the abuse of discretion standard differs from the arbitrary and capricious standard. See Brogan v. Holland, 105 F.3d 158, 161 n. 3 (4th Cir .1997) (declining to resolve the issue because any difference between the two standards in the case at hand was inconsequential); Bernstein v. CapitalCare, Inc., 70 F.3d 783, 787 n. 4 (4th Cir.1995) (same); Sheppard & Enoch Pratt Hosp., Inc. v."
},
{
"docid": "2252060",
"title": "",
"text": "or to determine eligibility under the plan, courts apply a deferential standard of review to those discretionary determinations by the plan administrator. Prior to Firestone, courts almost uniformly applied an arbitrary-and-capricious standard of review. Since Firestone, some courts have reviewed plan administrators' discretionary determinations under an abuse-of-discretion standard in reliance on Firestone `s statement, in dictum, that \"[aJ trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee's interpretation will not be disturbed if reasonable.” 489 U.S. at 111, 109 S.Ct. at 954. However, as the Seventh Circuit recently stated, differentiating between the arbitrary-and-capricious standard and the abuse-of-discretion standard requires both a willingness and an ability “to split semantic hairs.” Lister v. Stark, 942 F.2d 1183, 1188 (7th Cir.1991); Diroma v. Nat’l Org. of Indus. Trade Unions Ins. Fund, 1992 WL 123177, at *7, 1992 U.S. Dist. LEXIS 7698, at *9 (S.D.N.Y. May 27, 1992) (“This court finds there is no substantive difference between the two formulations as they relate to the denial of benefits_”). In the case at hand, summary judgment must be denied as to Count One under either the arbitrary-and-capricious standard or the abuse-of-discretion standard; under either standard, defendant has failed to show that no material issue of fact exists as to the reasonableness of Peterson’s decision to deny plaintiffs’ claims for severance benefits. Peterson apparently based his decision on (i) Papageorge’s assertion that he was committed to the future of the PFD, and (ii) Tantillo’s putative investigation of plaintiffs’ claims. However, Tantil-lo’s investigation apparently consisted of discussing plaintiffs’ claims with Tenicki, and then accepting Tenicki’s assertions at face value. For instance, Tantillo was asked at his deposition whether, during the course of his investigation of plaintiffs’ claims, he had “compare[d] the amount of support that was being provided to Mr. Clark and Snauffer at the time they resigned with the amount of support that was being provided to Mr. Clark and Snauffer as of October ’88, when The Bank of New York announced it was taking over Irving Trust Company.” (Kelly Aff. Ex. F at 222) Tan-tillo responded as"
},
{
"docid": "22923327",
"title": "",
"text": "standard. Any discussion of the appropriate standard of review of a trustee’s interpretation of an ERISA benefit plan begins with the seminal case of Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). In Firestone, the Supreme Court recognized that “[a] trustee may be given power to construe disputed or doubtful terms [of a plan], and in such circumstances that trustee’s interpretation will not be disturbed if reasonable.” Id. at 111, 109 S.Ct. at 954. Further, the Supreme Court held “that a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary authority to determine eligibility for benefits or to construe the terms of the plan.” Id. at 115, 109 S.Ct. at 956-57. Where the administrator is given discretionary authority to interpret the plan, the administrator’s interpretation is reviewed for an abuse of discretion. Id. In addition, “if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘facto[r] in determining whether there has been an abuse of discretion.’ ” Id., quoting, Restatement (Second) of Trusts § 187. Comment d (1959). In Pagan v. NYNEX Pension Plan, 52 F.3d 438 (2d Cir.1995), a decision which we note was decided after the district court rendered its rulings in this case, this Court held that “[w]here [as here] the written plan documents confer upon a plan administrator the discretionary authority to determine eligibility, we will not disturb the administrator’s ultimate conclusion unless it is ‘arbitrary and capricious.’” Pagan, 52 F.3d at 441. We enunciated this standard despite the plaintiffs contention that a less deferential standard should be applied where the administrators have a conflict of interest. In Pagan, notwithstanding that the plaintiff, like our plaintiff, argued conflict of interest, the court applied the abuse of discretion standard and held that “[w]here it is necessary for a reviewing court to choose between two competing yet reasonable interpretations of a pension plan, this Court must accept"
},
{
"docid": "16903617",
"title": "",
"text": "Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Richards v. United Mine Workers of America Health and Retirement Fund, 895 F.2d 133, 135 (4th Cir.1990); de Nobel v. Vitro Corp., 885 F.2d 1180, 1186 (4th Cir.1989). However, where the plan gives the trustees discretion to determine benefit eligibility or to construe plan terms, the standard of review is whether the trustees abused that discretion. Firestone, supra, 489 U.S. at 111, 109 S.Ct. 948 (holding that trust principles make a deferential standard of review appropriate when a trustee exercises discretionary powers. Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse of discretion. A trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee’s interpretation will not be disturbed if reasonable.) Where the plan administrator does not have discretion to determine benefit eligibility, however, such decisions are reviewed de novo. See generally Firestone, supra, 489 U.S. 101, 109 S.Ct. 948. In this case, the parties agree that the appropriate standard of review in this case is de novo. Consequently, the Court applies the de novo standard of review in its analysis of this case. STANDARD FOR SUMMARY JUDGMENT In consideration of the defendant’s motion for summary judgment, the Court is also cognizant of the fact that a moving party 'is entitled to summary judgment only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.Pro. 56(c). See Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir.1979). A genuine issue of material fact exists 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for"
},
{
"docid": "22857995",
"title": "",
"text": "jurisdiction over suits under § 186(c) by beneficiaries of LMRA plans who were denied benefits by trustees.” Id. at 109, 109 S.Ct. at 953. ERISA, on the other hand, explicitly authorizes private causes of action. Therefore, “the raison d’etre for the LMRA arbitrary and capricious standard ... is not present in ERISA.” Id. at 110, 109 S.Ct. at 954. However, after declining to 'apply the LMRA caselaw, the Firestone Court did not assume that the strict standards of ERISA necessarily should be applied in a de novo fashion. To the contrary, the Court proceeded’to point out that “ERISA abounds with the language and terminology of trust law” and that “ERISA’s legislative history confirms that the Act’s fiduciary responsibility provisions ... ‘codif[y] and mak[e] applicable to [ERISA] fiduciaries certain principles developed in the evolution of the law of trusts.’ ” Id. (citation omitted) (ellipses added). The Court previously had interpreted the statute and its legislative history as authorizing courts to develop a “ ‘federal common law of rights and obligations under ERISA-regulated plans,’ ” id. (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1558, 95 L.Ed.2d 39 (1987)), and in Firestone the Court further held that “[i]n determining the appropriate standard of review for actions under § 1132(a)(1)(B), we are guided by principles of trust law.” Id. at 111, 109 S.Ct. at 954. After examining the common law of trusts, the Court concluded that the language of the trust controls the ultimate standard of judicial review. Thus, “ ‘[w]here discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion.’ ” Id. (quoting Restatement (Second) of Trusts § 187 (1959)). However, where the trust agreement does not give the trustee power to construe uncertain provisions of the plan, or to make eligibility determinations, the trustee is.not entitled to deference and courts exercise de novo review. Id. at 111— 12, 109 S.Ct. at 955. Firestone’s analytical framework mandates a fresh look at"
},
{
"docid": "22858002",
"title": "",
"text": "trust principles animate the fiduciary responsibility provisions of ERISA.”). Our conclusion is supported by a recent decision by the Court of Appeals for the First Circuit discussing both Firestone and Struble. In that case, Mahoney v. Board of Trustees, 973 F.2d 968 (1st Cir.1992), the plaintiffs claimed that the trustees of a plan violated ERISA by increasing the size of retirement pensions unevenly, in a manner that “treat[ed] longshoremen who had already retired less favorably than those who were still working.” Id. at 969. The plaintiffs, relying in part on Struble, contended that because several of the trustees were working longshoremen, who benefitted from the trustees’ decision, the court should apply “an especially strict standard of review.” Id. at 970. The court disagreed, noting that in determining the appropriate standard of review after Firestone, trust law “guides, but does not control, our decision.” Id. at 971. The court then reviewed ordinary principles of trust law, as well as cases applying common law trust principles in analogous situations, and concluded that even though the trustees arguably made a decision to benefit themselves rather than the plaintiff class, trust law permitted them to be beneficiaries of the plan. Therefore, as long as they were making discretionary decisions, the arbitrary and capricious standard of review applied. 3. The Scope of Review Over the Committee’s Interpretation In this case, Firestone itself gives us guidance as to the standard of review over the Committee’s interpretation of the plan. The Supreme Court’s analysis of trust law led it to the conclusion that “[a] trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee’s interpretation will not be disturbed if reasonable.” Firestone, 489 U.S. at 111, 109 S.Ct. at 954. This conclusion is in accord with general principles of trust law, which provide that “[w]here discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court, except to prevent an abuse by the trustee of his discretion.” Restatement (Second) of Trusts § 187. Indeed, in Central States,"
},
{
"docid": "23168547",
"title": "",
"text": "proper source from which to draw ERISA legal standards. Id., at -, 109 S.Ct. at 954. As the common law of trusts mandated a de novo review for the case before the Court, the Court held that such a review was mandated by ERISA. Id., at-, 109 S.Ct. at 955. But the Court did not tell what standard should be used in situations like this, where de novo review is improper, other than to say that it should be “deferential.” Id., at -, 109 S.Ct. at 954. Reference was made in the opinion, however, to several possible standards. The Court’s statement about an unwarranted wholesale importation into ERISA of the arbitrary and capricious standard suggests that in cases of discretion a partial importation of that standard may be warranted. See id., at -, 109 S.Ct. at 953. See also Lakey v. Remington Arms Co., 874 F.2d 541, 544 (8th Cir.1989) (adopting arbitrary and capricious standard post-Firestone). The Court’s quotation of the Restatement (Second) of Trusts § 187 (1959) suggests that an “abuse of discretion” standard may be proper. See Firestone, supra, at -, 109 S.Ct. at 954. See also Boyd v. Trustees of the United Mine Workers Health & Retirement Funds, 873 F.2d 57, 59 (4th Cir.1989) (adopting abuse of discretion standard post-Firestone); Lowry v. Bankers Life & Casualty Retirement Plan, 871 F.2d 522, 525 (5th Cir.) (same), cert denied, — U.S. -, 110 S.Ct. 152, 107 L.Ed.2d 111 (1989). The Court also stated that a reasonableness standard may suffice: “A trustee may be given a power to construe disputed or doubtful terms, and in such circumstances the trustee’s interpretation will not be disturbed if reasonable.” Firestone, supra, at -, 109 S.Ct. at 954. Finally, the Court hinted that a “good faith” standard may be proper in this case, since the Central States Trust Agreement speaks of complete discretion in the Trustees, subject only to a good faith restraint. See id., at -, 109 S.Ct. at 954. See also Central States, S.E. & S.W. Areas Pension Fund v. Central Transport, Inc., 472 U.S. 559, 568, 105 S.Ct. 2833, 2839, 86"
},
{
"docid": "23392870",
"title": "",
"text": "extensive examination of plaintiff done by the [Social Security] ALJ. This appeal followed. II. The Standard of Review ERISA expressly provides for judicial review of benefit denial decisions, but does not specify the appropriate standard of review. In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956, 103 L.Ed.2d 80 (1989), borrowing from traditional trust law principles, the Supreme Court stated that a deferential standard of review is appropriate under § 1132(a)(1)(B) if “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” In this case, § 6.03 of Mid-America’s Retirement Plan provides: In case of any factual dispute hereunder, the Retirement Committee shall resolve such dispute giving due weight to all evidence available to it. The Retirement Committee shall interpret the Plan and shall determine all questions arising in the administration, interpretation and application of the Plan. We agree with the district court that this Plan language requires that a deferential abuse of discretion standard be applied both to the Retirement Committee’s interpretations of the Plan and to its fact-based disability determinations. Although Bruch involved a trustee decision that was reviewed de novo, the Supreme Court provided considerable guidance in applying a deferential standard, first, by clarifying that traditional trust law principles are the relevant frame of reference, and second, by specifically citing the Restatement (Second) of Trusts § 187, Comment d, in briefly discussing how the deferential standard may be affected when the trustee is acting under a conflict of interest. 489 U.S. at 115, 109 S.Ct. at 956. Section 187 of the Restatement provides that discretion conferred upon a trustee “is not subject to control by the court, except to prevent an abuse by the trustee of his discretion.” Comment d then elaborates on this standard: d. Factors in determining whether there is an abuse of discretion. In determining the question whether the trustee is guilty of an abuse of discretion in exercising or failing to exercise a power, the following circumstances may be relevant: (1) the extent"
},
{
"docid": "980537",
"title": "",
"text": "873 F.2d 57, 59 (4th Cir.1989). The principal issue in the instant case is the same as was before the Supreme Court in Firestone, viz., “plan interpretation”. 489 U.S. at 108, 109 S.Ct. at 953. Was the administrators’ denial of benefits to Block based upon a correct interpretation of the term “total disability” as defined in the plan? The Firestone Court said that “ERISA abounds with the language and terminology of trust law”, and that “[i]n determining the appropriate standard of review for actions under § 1132(a)(1)(B), we are guided by principles of trust law.” Id. at 110-11, 109 S.Ct. at 953-54. It then quoted section 187 of the Restatement (Second) of Trusts, which states: “Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion.” Id. at 111, 109 S.Ct. at 954. A fair reading of the Court’s discussion that followed demonstrates that it adopted the American Law Institute’s abuse of discretion standard of review and rejected the arbitrary and capricious standard of review that had been adopted by most federal courts. See id. at 113-14, 109 S.Ct. at 955-56. The Court held that, unless a plan gives the administrator discretion to determine eligibility for benefits or to construe the terms of the plan, a denial of benefits should be reviewed under a de novo standard. Id. at 115, 109 S.Ct. at 956. More to the point, the Court concluded: “Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘facto[r] in determining whether there is an abuse of discretion.’ Restatement (Second) of Trusts § 187, Comment d (1959).” Id. One might contend that the last quoted statement is substantially dictum because the Firestone administrator did not have discretionary authority. However, the Court was not pronouncing dictum when it said that the abuse of discretion standard of section 187 was the proper one to apply. Id."
},
{
"docid": "4072675",
"title": "",
"text": "and capricious.\" Appellants' Br. at iv. Sun, in contrast, contends that the issue is whether the Plan Committee \"abuse[d] its discretion.\" Appellees' Br. at 1. This disagreement over terminology reflects the uncertainty within this circuit regarding the interpretation of the Supreme Court's decision in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Prior to that case, the standard of review in ERISA cases of this type was arbitrary and capricious. Some panels have interpreted the Firestone decision, which adopted de novo review only for cases in which administrators or fiduciaries have no discretion, as leaving the former standard unchanged for cases in which a plan grants discretion to administrators or fiduciaries. However, at least one panel recently has applied an abuse of discretion standard. See Fuller v. CBT Corp., 905 F.2d 1055, 1058 (7th Cir.1990). The court in Fuller perhaps was reacting to dicta in Firestone, where the Supreme Court made the following observations: Trust principles make a deferential standard of review appropriate when a trustee exercises discretionary powers. See Restatement (Second) of Trusts § 187 (1959) (“Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion”). 489 U.S. at 111, 109 S.Ct. at 954. In the post-Firestone era, other circuits also have applied either the arbitrary and capricious standard or the abuse of discretion standard, with at least one court expressly finding the standards “interchangeabl[e].” Brown v. Blue Cross & Blue Shield of Alabama, 898 F.2d 1556, 1558 n. 1 (11th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991). Similarly, the district court in this case declined to determine “the difference, if any, between an ‘abuse of discretion’ standard and an ‘arbitrary and capricious’ standard.” Lister v. Stark, 11 Employee Benefits Cas. (BNA) 1611, 1618, 1989 WL 88241 (N.D.Ill.1989). We are sympathetic to this unwillingness to split semantic hairs. Because the central issue before us is the construction of"
}
] |
677680 | To establish liability under § 1983, a defendant must be (1) acting under color of state law and (2) defendant's actions resulted in a deprivation of constitutional rights. Washington v. County of Rockland , 373 F.3d 310, 315 (2d Cir. 2004). For an individual defendant to be liable, an official must be personally involved by (1) directly participating in the constitutional violation, (2) failing to remedy the constitutional violation after being informed of the violation, (3) creating a policy that allowed for unconstitutional violations or allowing for unconstitutional violations under the policy, (4) supervising employees who committed wrongful acts with gross negligence, or (5) exhibiting deliberate indifference towards the rights of others. 42 U.S.C. § 1983 ; REDACTED Establishing a defendant's personal involvement in the alleged constitutional deprivations is a prerequisite to damages under § 1983. Brown v. City of Syracuse , 197 F. App'x 22, 25 (2d Cir. 2006). The same framework applies to a New York state constitutional violation. Town of Southold v. Town of East Hampton , 477 F.3d 38, 53 n. 3 (2d Cir. 2007) ; Weber v. City of New York , 973 F. Supp. 2d 227, 274 (E.D.N.Y. 2013). An equal protection claim is then analyzed under the same framework as a Title VII employment discrimination claim. Id. , see Feingold v. New York , 366 F.3d 138, 159 (2d Cir. 2004). Plaintiff failed to plead facts sufficient to state a | [
{
"docid": "22900546",
"title": "",
"text": "the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial. County of Sacramento, 523 U.S. at 849-50, 118 S.Ct. 1708 (emphases added) (internal citations and quotation marks omitted). B. Supervisors The school’s former and current superintendents and the school principal (“the Supervisors”) challenge the district court’s denial of their qualified immunity defense. The Supervisors argue that the factual allegations in the complaint fail to establish that they were “personally involved” in the deprivation of T.J.’s substantive due process rights and that, as a result, they are entitled to qualified immunity because they did not violate T.J.’s right to be free of excessive force. “It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (internal quotation marks omitted). Personal involvement of a supervisory official may be established “by evidence that: (1) the [official] participated directly in the alleged constitutional violation, (2) the [official], after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the [official] created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the [official] was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the [official] exhibited deliberate indifference to the rights of [others] by failing to act on information indicating that unconstitutional acts were occurring.” Id.; see also Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1066 (2d Cir.1989)(direet participation not necessary to establish personal involvement). Because this appeal comes to us from a denial of defendants’ motion to dismiss on the basis of qualified immunity, our task is to consider whether, as a matter of law, the factual allegations and all reasonable inferences therefrom are insufficient to establish the required showing of personal involvement. See Gubitosi v. Kapica, 154 F.3d 30, 32 (2d Cir.1998) (“[A]n appeal is available ... [from] a rejection of the immunity defense where the"
}
] | [
{
"docid": "23026188",
"title": "",
"text": "viewing the evidence in the light most favorable to plaintiffs, no reasonable jury could conclude that the defendant acted unreasonably in light of the clearly established law. Ford v. Moore, 237 F.3d 156, 162 (2d Cir.2001). In other words, government officials will be immune from liability if they can establish that it was objectively reasonable for them to believe their actions were lawful at the time. Moore, 371 F.3d at 114. II Section 1983 Claims Plaintiffs brought equal ■ protection claims against the Mayor and Village Administrator under 42 U.S.C. § 1983 alleging violations of their Fourteenth Amendment rights to be free from discrimination. Section 1983 allows an action at law against a “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 ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. Having discussed the framework for deciding an issue of qualified immunity, we turn to the threshold question in this case: whether, on the facts alleged, Mayor Ze-garelli and Village Administrator Douglas could be found to have violated plaintiffs’ equal protection rights. We have held that sex-based discrimination may be actionable under § 1983 as a violation of equal protection. See Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir.1996). Accordingly, § 1983 and the Equal Protection Clause protect public employees from various forms of discrimination, including hostile work environment and disparate treatment, on the basis of gender. Once action under color of state law is established, the analysis for such claims is similar to that used for employment discrimination claims brought under Title VII, the difference being that a § 1983 claim, unlike a Title VII claim, can be brought against individuals. See Feingold v. New York, 366 F.3d 138, 159 & n. 20 (2d Cir.2004) (reasoning that § 1983 equal protection claims parallel Title VII claims); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir.2004) (applying McDonnell Douglas framework to"
},
{
"docid": "22297459",
"title": "",
"text": "review of child welfare case practices.” Compl. ¶ 78. Littlejohn’s factual allegations are more than sufficient to make plausible her claim that her demotion occurred under circumstances giving rise to an inference of discrimination. See Zimmermann, 251 F.3d at 381. Accordingly, we hold that Littlejohn’s complaint alleges sufficient facts to satisfy the requirements of Iqbal. The district court therefore erred in dismissing this claim. B. Liability of the Individual and City Defendants We must now determine, based on these allegations, which Defendants must face Littlejohn’s disparate treatment claim under Title VII and §§ 1981 and 1983. We first note that Title VII “does not create liability in individual supervisors and co-workers who are not the plaintiffs’ actual employers.” Raspardo v. Carlone, 770 F.3d 97, 113 (2d Cir.2014). Thus, Littlejohn’s disparate treatment claim under Title VII fails as to Defendants Baker, Mattingly, and Stradford, but survives as to her employer, the City. Littlejohn’s disparate treatment claim under §§ 1981 and 1983 fails as to Mattingly and Stradford. An individual may be held liable under §§ 1981 and 1983 only if that individual is “personally involved in the alleged deprivation.” Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir.2004) (§ 1983); Patterson v. Cnty. of Oneida, 375 F.3d 206, 229 (2d Cir.2004) (§ 1981); see also Raspardo, 770 F.3d at 116 (“[Section] 1983 requires individual, personalized liability on the part of each government defendant.... [B]ecause vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.’ ’’(second ellipsis in original) (quoting Iqbal, 556 U.S. at 676, 129 S.Ct. 1937)). Personal involvement can be established by showing that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed"
},
{
"docid": "8174854",
"title": "",
"text": "equal protection claim parallels his or her § 1983 claim, the “elements of one are generally the same as the elements of the other and the two must stand or fall together.” Feingold, 366 F.3d at 159. Here, summary judgment has been denied with respect to the plaintiffs Title VII claim concerning denial of the 2008 OIC position and thus summary judgment must also be denied with respect to the plaintiffs § 1983 claim arising from this incident. B. The inquiry thus turns to which of the defendants, if any, were personally involved in this alleged constitutional deprivation. “It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.2006) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994)). Where the officer is a supervisor, at a minimum, “liability in a § 1983 action depends on a showing of some personal responsibility, and cannot rest on respondeat superior.” Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009); Solar v. Annetts, 707 F.Supp.2d 437, 441 (S.D.N.Y.2010). In Colon v. Coughlin, 58 F.3d 865 (2d Cir.1995), the Second Circuit Court of Appeals held that: [t]he personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiffs] by failing to act on information indicating that unconstitutional acts were occurring. Id. at 873. The Court of Appeals has not yet definitively decided which of the Colon factors remains a basis for establishing supervisory"
},
{
"docid": "20485726",
"title": "",
"text": "constitution. “[Section] 1983 and the Equal Protection Clause protect public employees from various forms of discrimination, including hostile work environment and disparate treatment” claims. Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir.2006); see also Das v. Consol. Sch. Dist. of New Britain, 369 Fed.Appx. 186, 188 (2d Cir.2010). Once a plaintiff has established action under color of state law, the same analytical framework applies whether the disparate treatment claim is brought under § 1983 or Title VII. See Abdul-Hakeem v. Parkinson, 523 Fed.Appx. 19, 20 (2d Cir.2013) (“In the context of a § 1983 suit where the color of state law is established, an equal protection claim parallels a Title VII employment discrimination claim.” (alteration, citations and internal quotation marks omitted)); see also Das, 369 Fed.Appx. at 188; Demoret, 451 F.3d at 149; Alexander v. City of New York, 957 F.Supp.2d 239, 247-48, No. 11-CV-4638, 2013 WL 3943496, at *7 (E.D.N.Y. July 23, 2013). In addition, the Second Circuit has held that “the Equal Protection Clauses of the federal and New York Constitutions are coextensive.” Town of Southold v. Town of E. Hampton, 477 F.3d 38, 53 n. 3 (2d Cir.2007) (“Because the Equal Protection Clauses of the federal and New York Constitutions are coextensive, see Pinnacle Nursing Home v. Axelrod, 928 F.2d 1306, 1317 (2d Cir.1991), our analysis responds to [plaintiffs] claims under each of these provisions.”); Dotson v. Farrugia, No. 11-CV-1126, 2012 WL 996997, at *8 n. 3 (S.D.N.Y. Mar. 26, 2012) (“The Equal Protection Clauses of the United States and the New York Constitutions are coextensive, and therefore an analysis under one equally supports an analysis under the other.”). As discussed supra, Plaintiff has failed to establish a claim for religious or age discrimination pursuant to Title VII. For the same reasons that Plaintiff cannot establish a claim under Title VII, Plaintiff cannot establish a claim for equal protec tion pursuant to § 1983 and the New York constitution. III. Conclusion For the foregoing reasons, the Court grants Defendants’ motion for summary judgment and the Complaint is dismissed in its entirety. SO ORDERED. . Pursuant to"
},
{
"docid": "14888107",
"title": "",
"text": "Commissioner of the New York State Department of Correctional Services at the time of the events in suit, contends that the plaintiffs complaint must be dismissed against him because he was not personally involved in the alleged violation of plaintiffs federal constitutional rights. According to this defendant, the plaintiff improperly seeks to hold him liable for damages under the doctrine of re-spondeat superior, which is unavailable in actions brought under 42 U.S.C. § 1983. See Monell v. Department of Social Servs., 436 U.S. 658, 691-92, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978) (A defendant’s personal involvement in the alleged constitutional violation is a prerequisite to the imposition of damages.). “It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of [monetary] damages under § 1983.’ Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (internal quotations and citations omitted). A defendant may be personally involved in a constitutional deprivation in one of the following ways: [1] The defendant may have directly participated in the infraction. [2] A supervisory official, after learning of the violation through a report or appeal, may have failed to remedy the wrong. [3] A supervisory official may be liable because he or she created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue. [4] [A] supervisory official may be personally liable if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event. [5] [Supervisory liability may be imposed where an official demonstrates “gross negligence” or “deliberate indifference” to the constitutional rights of inmates by failing to act on information indicating that unconstitutional practices are taking place. Wright, 21 F.3d at 501; see Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986) (citations omitted); McCann v. Coughlin, 698 F.2d 112, 125 (2d Cir.1983) (holding that defendant Coughlin had actual or constructive notice of unconstitutional procedures, and therefore could not escape personal responsibility). A review of the plaintiffs complaint reveals it"
},
{
"docid": "22338002",
"title": "",
"text": "capacities. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Here, Feingold has shown that the deprivations he alleges were under color of state law because they were committed by state employees acting in their official capacities as MNO employees and exercising their responsibilities pursuant to state law. See id. at 49-50, 108 S.Ct. 2250; Hayut v. State Univ. of New York, 352 F.3d 733, 744 (2d Cir.2003). a. Equal Protection Claim Feingold alleges that each of the named individual defendants is liable in his or her individual capacity under Section 1983 for violating Feingold’s constitutional right to Equal Protection. Once action under color of state law is established, Feingold’s equal protection claim parallels his Title VII claim. The elements of one are generally the same as the elements of the other and the two must stand or fall together. See Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir.1998) (“In analyzing whether conduct was unlawfully discriminatory for purposes of § 1983, we borrow the burden-shifting framework of Title VII claims.”); Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir.1996) (stating that “Title VII law ... is utilized by courts considering § 1983 Equal Protection claims” and recognizing that “several circuits have held that, when § 1983 is used as a parallel remedy with Title VII in a discrimination suit ... the elements of the substantive cause of action are the same under both statutes.”). A finding of “personal involvement of [the individual] defendants” in an alleged constitutional deprivation is a prerequisite to an award of damages under Section 1983. Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir.2001) (internal quotation marks omitted). We have earlier found that Feingold has presented sufficient evidence to permit the conclusion that all of the named individual defendants were personally involved"
},
{
"docid": "11200553",
"title": "",
"text": "2007 WL 1827414, at *3 (E.D.N.Y. June 25, 2007) (citations and quotations omitted). Since the Town is named in the Complaint, the claims against Defendants, in their official capacities, are dismissed as duplicative and redundant. See, e.g., Drees v. County of Suffolk, No. 06 Civ. 3298, 2007 WL 1875623, at *19 (E.D.N.Y. June 27, 2007) (dismissing the claims against the individual defendants, in their official capacities, as duplicative of the claims against the County); Baines v. Masiello, 288 F.Supp.2d 376, 384 (W.D.N.Y.2003) (dismissing the claims against the City’s counsel and officials, in their official capacities, as duplicative of the claims against the City); Rini v. Zwirn, 886 F.Supp. 270, 282 (E.D.N.Y. 1995) (dismissing the claims against the Town’: appointed officials and employees, including a supervisor and town board members, in their official capacities, as duplicative of the claims against the Town); Orange v. County of Suffolk, 830 F.Supp. 701, 707 (E.D.N.Y.1993) (dismissing claims against the County’s legislators and executive, in their official capacities, as duplicative of the claims against the County). Accordingly, Defendants’ motion for summary judgment to dismiss the claims against the Defendants, in their official capacity, is granted. 2. Individual Capacity Claims “In this Circuit personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir.1991) (citing McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977)), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978); AV-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065-66 (2d Cir.1989). The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of"
},
{
"docid": "18685372",
"title": "",
"text": "56 L.Ed.2d 611 (1978) (A defendant’s personal involvement in the alleged constitutional violation is a prerequisite to the imposition of damages.). “It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of [monetary] damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (internal quotations and citations omitted). A defendant may be personally involved in a constitutional deprivation in one of the following ways: (1) The defendant may have directly participated in the infraction. (2) A supervisory official, after learning of the violation through a report or appeal, may have failed to remedy the wrong. (3) A supervisory official may be hable because he or she created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue. (4) [A] supervisory official may be personally liable if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event. (5) [Sjupervisory liability may be imposed where an official demonstrates “gross negligence” or “deliberate indifference” to the constitutional rights of inmates by failing to act on information indicating that unconstitutional practices are taking place. Wright, 21 F.3d at 501; see Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986) (citations omitted); McCann v. Coughlin, 698 F.2d 112, 125 (2d Cir.1983) (holding that defendant Coughlin had actual or construe- tive notice of unconstitutional procedures, and therefore could not escape personal responsibility). A review of the Second Amended Complaint reveals it sufficiently to allege that each of the subject defendants, other than defendant Byrnes, either (i) directly participated in the deprivation of plaintiffs constitutional rights; (ii) exhibited “deliberate indifference” with respect to plaintiffs constitutional rights by failing to remedy the wrongful deprivation after having been notified of the deprivation; or (in) both. At no point does the Second Amended Complaint assert liability with respect to a particular defendant on the basis of re-spondeat supeñor. As these concerns are comprehensively addressed in the plaintiffs memorandum of law, see Pl.’s Mem. of Law, at 20-24, the Court finds it"
},
{
"docid": "16232810",
"title": "",
"text": "was committed by a person acting under color of state law.” Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir.1996), cert. denied, 520 U.S. 1155, 117 S.Ct. 1335, 137 L.Ed.2d 494 (1997). It is undisputed that the defendants acted under color of state law. Plaintiff alleges that defendants discriminated against him on the basis of age in violation of the Equal Protection Amendment. Because age is not a suspect class, the Equal Protection Clause only requires a rational basis for discrimination on the basis of age. See Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); Manzi v. DiCarlo, 62 F.Supp.2d 780, 795(E.D.N.Y.1999). Whether or not defendants had a rational basis to discriminate on the basis of age is an issue of fact for the jury. Thus, defendants’ motion for summary judgment dismissing plaintiffs § 1983 claim is denied. 1. Individual Liability Under § 1983 a. Respondeat Superior Plaintiffs section 1983 claim against Supervisor Feiner in his individual capacity must be dismissed for lack of personal involvement. Where damages are sought in a section 1983 action, the defendant must be responsible for the alleged constitutional deprivation: “[T]he general doctrine of respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required.” Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.1989) (quoting Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.1973)). As Judge Scheindlin recently stated: A supervisory official may be personally involved in a section 1983 violation in several ways: (1) the official may have directly participated in the violation; (2) the official, after learning of the violation, may have failed to remedy the wrong; (3) the official may have created a policy or custom under which unconstitutional practices occurred; (4) the official may have been grossly negligent in managing subordinates who caused the unlawful condition or event; or (5) the official may have exhibited deliberate indifference by failing to act on information indicating that unconstitutional acts were occurring. Showers v. Eastmond, No. 00 Civ. 3725, 2001 WL 527484, at *4 (S.D.N.Y. May 16, 2001). Here,"
},
{
"docid": "5202114",
"title": "",
"text": "position by alleging that the defendant: “(1) directly participated in the infraction; (2) failed to remedy the wrong after learning of the violation; (3) created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue; (4) was grossly negligent in managing subordinates who caused the unlawful condition or event; or (5) exhibited ‘gross negligence’ or ‘deliberate indifference’ to the constitutional rights of [the plaintiff] by having actual or constructive notice of the unconstitutional practices and failing to act.” Kregler, 821 F.Supp.2d at 655-56 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Wright, 21 F.3d at 501). A municipality may only be liable on a § 1983 claim “if the deprivation of the plaintiffs rights under federal law is caused by a governmental custom, policy, or usage of the municipality.” Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir.2012) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). In the absence of such a custom or policy, a municipality may not be held liable on a § 1983 claim for the actions of its employees under a theory of vicarious liability. See Jones, 691 F.3d at 80 (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018, 56 L.Ed.2d 611). Thus, isolated acts of municipal employees are typically not sufficient to establish municipal liability. However, acts done “pursuant to municipal policy, or [that] were sufficiently widespread and persistent to support a finding that they constituted a custom, policy, or usage of which supervisory authorities must have been aware” would justify liability of the municipality. Jones, 691 F.3d at 81. Further, “a municipal custom, policy, or usage would be inferred from evidence of deliberate indifference of supervisory officials to such abuses.” Id. a. First Amendment Retaliation “[T]he First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Dillon v. Suffolk Cnty. Dep’t of Health Servs., 917 F.Supp.2d 196, 205, No. 07-CV-4722, 2013 WL 208950, at *6 (E.D.N.Y. Jan. 16, 2013) (quoting"
},
{
"docid": "5202113",
"title": "",
"text": "claim pursuant to 42 U.S.C. § 1983, a plaintiff must allege “(1) that some person has deprived him of a federal right, and (2) that the person who has deprived him of that right acted under color of state ... law.” Velez v. Levy, 401 F.3d 75, 84 (2d Cir.2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) (internal quotations omitted)). “Section 1983 is not itself a source of substantive rights[,] but merely provides a method for vindicating federal rights elsewhere conferred!.]” Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir.2004) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). “[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Kregler v. City of New York, 821 F.Supp.2d 651, 655-656 (S.D.N.Y.2011) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (internal quotation marks omitted)). A plaintiff may allege the personal involvement of a defendant who occupies a supervisory position by alleging that the defendant: “(1) directly participated in the infraction; (2) failed to remedy the wrong after learning of the violation; (3) created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue; (4) was grossly negligent in managing subordinates who caused the unlawful condition or event; or (5) exhibited ‘gross negligence’ or ‘deliberate indifference’ to the constitutional rights of [the plaintiff] by having actual or constructive notice of the unconstitutional practices and failing to act.” Kregler, 821 F.Supp.2d at 655-56 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Wright, 21 F.3d at 501). A municipality may only be liable on a § 1983 claim “if the deprivation of the plaintiffs rights under federal law is caused by a governmental custom, policy, or usage of the municipality.” Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir.2012) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). In the absence of such a"
},
{
"docid": "7286713",
"title": "",
"text": "liable under a theory of supervisory liability is similarly flawed. To state a claim for supervisory liability under § 1983, plaintiff must demonstrate the personal involvement, in the challenged conduct, of the supervisor. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). There are several ways by which to demonstrate the personal involvement of a supervisory defendant: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). Here, plaintiff has put forth sufficient evidence to create an issue of fact as to Race’s direct participation in the alleged constitutional deprivation or, at a minimum, as to whether he was grossly negligent in supervising subordinates engaged in such acts. In addition, Race is not entitled to qualified immunity on this claim on summary judgment. A theory of supervisory liability was clearly established at the time of the events underlying this case, see Meriwether v. Coughlin, 879 F.2d 1037, 1047 (2d Cir.1989), and, if it is proven that Race participated in a scheme to frame Blake by feeding Garner facts and pressuring him to falsely implicate Blake, he would not be entitled to qualified immunity. Thus, the supervisory liability claim as to Race cannot be dismissed on summary judgment. For the same reasons, defendants’ motion as to the pendent state claims of negligence and gross negligence against Race is denied. .Defendants assert that there is no evidence to suggest Saurman was the detective who was coming in and out of the room during the alleged fact-feeding session. However, the DD-5, summarizing Gamer’s statement is signed by Saurman, indicating that Saurman participated in taking"
},
{
"docid": "22297460",
"title": "",
"text": "and 1983 only if that individual is “personally involved in the alleged deprivation.” Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir.2004) (§ 1983); Patterson v. Cnty. of Oneida, 375 F.3d 206, 229 (2d Cir.2004) (§ 1981); see also Raspardo, 770 F.3d at 116 (“[Section] 1983 requires individual, personalized liability on the part of each government defendant.... [B]ecause vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.’ ’’(second ellipsis in original) (quoting Iqbal, 556 U.S. at 676, 129 S.Ct. 1937)). Personal involvement can be established by showing that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference ... by failing to act on information indicating that unconstitutional acts were occurring. Back, 365 F.3d at 127. In addition to fulfilling one of these requirements, “a plaintiff must also establish that the supervisor’s actions were the proximate cause of the plaintiffs constitutional deprivation. Finally, as with individual liability, in the § 1983 context, a plaintiff must establish that a supervisor’s behavior constituted intentional discrimination on the basis of a protected characteristic.... ” Raspardo, 770 F.3d at 116 (citation omitted). Littlejohn does not allege that Mattingly or Stradford had any personal involvement in Littlejohn’s demotion, as Littlejohn concedes that Baker alone made the decision to demote her. In fact, Little-john alleges that Mattingly “encouraged” Littlejohn to “be part of the panel of managers that implemented the intake of DJJ.” Compl. ¶ 43. Nothing in the complaint could lead to an inference that Mat-tingly personally participated in Baker’s decision to demote Littlejohn. Nor do Mattingly’s statements that Baker “was hurt” and that Baker “wields a lot"
},
{
"docid": "14315196",
"title": "",
"text": "a suit against state officials — which is construed as a suit against the state itself, Gan v. City of New York, 996 F.2d 522, 529 (2nd Cir.1993) — unless the state has waived its Eleventh Amendment immunity or Congress has overridden it, a party cannot recover monetary damages. Yorktown Medical Laboratory v. Perales, 948 F.2d 84, 89 (2nd Cir.1991). Thus, if a party seeks monetary damages, the suit should be construed as one against the state official in his or her individual capacity. . As a prerequisite to maintaining a Section 1983 action against an official in their personal capacity, a plaintiff must allege a defendant's direct or personal involvement in the alleged constitutional deprivation. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). Liability for damages in a Section 1983 action may not be based on the respondeat superior or vicarious liability doctrines. See Monell, 436 U.S. at 691, 98 S.Ct. at 2036. Supervisors, however, may be found liable under Section 1983 in the following circumstances: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the [violation of rights] by failing to act on information indicating that unconstitutional acts were occurring. Colon, 58 F.3d at 873 (citing Wright, 21 F.3d at 501). . The determination of whether individual actors hold policymaking authority is a question of law for the judge to decide. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989); Frank, 1 F.3d at 1327; Philippeaux v. North Cent. Bronx Hosp., 871 F.Supp. 640, 652-53 (S.D.N.Y.1994) (DLC) (discussing interplay of Monell, Jett, and Sections 1981 and 1983), aff'd 104 F.3d 353 (2d Cir.1996),"
},
{
"docid": "17996628",
"title": "",
"text": "at *7 (E.D.N.Y.2009) (same). D. The Law Of Employment Discrimination 1. Section 1983 Claims of Employment Discrimination To state a claim under 42 U.S.C. § 1983 against the Individual Defendants, Bermudez must allege that: (1) the Individual Defendants were acting under color of state law, and (2) the Individual Defendants’ conduct deprived Bermudez of a constitutional or a federal statutory right. See Washington v. County of Rockland, 373 F.3d 310, 315 (2d Cir.2004). The deprivation alleged by Bermudez is race, gender, and religious discrimination and a hostile work environment. Employment discrimination claims under 42 U.S.C. § 1983, whether based on race, religion, or gender, are analyzed under the McDonnell Douglas framework. See Boykin v. KeyCorp., 521 F.3d 202, 213 (2d Cir.2008). Bermudez must allege the following four elements: (1) she falls within a protected class, (2) she was performing her duties satisfactorily, (3) she was subject to an adverse employment action, and (4) the adverse employment action occurred under circumstances giving rise to an inference of unlawful discrimination. See Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000). Although “an employment discrimination plaintiff need not plead a prima facie case of discrimination” in order to survive a motion to dismiss, Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), Bermudez must allege sufficient facts showing that she is entitled to relief. See, e.g., Alleyne v. American Airlines, Inc., 548 F.3d 219, 221 (2d Cir.2008); Leibowitz v. Cornell University, 445 F.3d 586, 591 (2d Cir.2006). When the defendant sued for discrimination under § 1983 is a municipality or an individual sued in his official capacity, the plaintiff is required to show that the challenged acts were performed pursuant to a municipal policy or custom. See Patterson v. County of Oneida, 375 F.3d 206, 225-227 (2d Cir.2004) (citing Jett v. Dallas Independent School District, 491 U.S. at 733-36, 109 S.Ct. 2702; Monell v. Department of Social Services, 436 U.S. 658, 692-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)) (internal citations omitted). Moreover, to bring a claim within the continuing-violation exception, the plaintiff must"
},
{
"docid": "9848540",
"title": "",
"text": "DECISION AND ORDER DAVID G. LARIMER, District Judge. Plaintiff, Leon Kornegay, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services (“DOCS”), alleges that his constitutional rights have been violated in a number of respects by defendants, all of whom were at all relevant times officials or employees of DOCS. The amended complaint names six individual defendants (one of whom is identified only as “Sgt. C”), as well as “John Doe etc.,” “any supervisory personnel,” the State of New York, the County of Che-mung, Elmira Correctional Facility, and the New York State Department of Health. Four of the defendants — Correction Officer (“C.O.”) Patrick Bryan, C.O. John Dandrea, DOCS Commissioner Glenn Goord, and Deputy Commissioner/Chief Medical Officer Lester Wright — -have been served and have appeared in this action. Those four defendants (“moving defendants”) have moved for summary judgment dismissing the complaint. For the reasons that follow, defendants’ motion is granted in part and denied in part. DISCUSSION I. Goord and Wright Defendants Goord and Wright move for summary judgment on the ground that plaintiff has failed to demonstrate their personal involvement in the alleged constitutional violations. A plaintiff asserting a § 1983 claim against a supervisory official in his individual capacity must allege that the supervisor was personally involved in the violation of his constitutional rights. Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir.2001); Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir.2001). That requirement may be satisfied by alleging facts showing that: (1) the defendant participated directly in the alleged constitutional violation; (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong; (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom; (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts; or (5) the defendant exhibited deliberated indifference to others’ rights by failing to act on information indicated that constitutional acts"
},
{
"docid": "21266021",
"title": "",
"text": "who did not trust his or her union. The Due Process Clause does not require such measures. See Harhay, 323 F.3d at 213. Instead, the Court concludes that providing employees with advance notification of termination and an opportunity for a pre-termination hearing, in conjunction with a process for employees to file post-deprivation grievances, satisfies the procedural due process requirements of the Fourteenth Amendment. B. Equal Protection and Title VII— Gender Discrimination Both Ms. McCardle and Ms. Lavoie-Francisco (but no other Plaintiff) allege that Defendants did not select them for the PO I positions based upon their gender, in violation of the Equal Protection Clause. Ms. McCardle also brings a Title VII claim relying on the same facts. The Second Circuit has held that gender-based discrimination may be actionable under 42 U.S.C. § 1983 as a violation of the Equal Protection Clause. See Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir.1996). “Once action under color of state law is established, the analysis for such claims is similar to that used for employment discrimination claims brought under Title VII, the difference being that a § 1983 claim, unlike a Title VII claim, can be brought against individuals.” Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir.2006) (citing Feingold v. New York, 366 F.3d 138, 159 & n. 20 (2d Cir.2004) and Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir.2004)). Thus, courts analyze gender-based disparate treatment equal protection claims under the familiar burden-shifting framework developed under Title VII in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Ms. McCardle and Ms. Lavoie-Francisco must first establish a prima facie case by demonstrating that: (1) they are members of a protected class; (2) they were qualified for the PO I position; (3) they suffered an adverse employment action; and (4) the action occurred under conditions giving rise to an inference of discrimination. See Demoret, 451 F.3d at 151. If Ms. McCar-dle and Ms. Lavoie-Francisco establish their prima facie case, “the burden shifts to the defendants] ... to provide"
},
{
"docid": "14002577",
"title": "",
"text": "liability so long as they could point to objective evidence showing that a reasonable official could have acted on legitimate grounds.’” Johnson v. Ganim, 342 F.3d 105, 117 (2d Cir.2003). Here, because the Court is allowing further development of the record on Defendants’ intent, the Court defers consideration of this question until after discovery as to Defendants’ intent has been completed. See Johnson v. Ganim, 342 F.3d 105, 117 (2d Cir.2003) (“Where a factual issue exists on the issue of motive or intent, a defendant’s motion for summary judgment on the basis of qualified immunity must fail.”); Mandell v. County of Suffolk, 316 F.3d 368 (2d Cir.2003) (“Where specific intent of a defendant is an element of plaintiffs claim under clearly established law, and plaintiff has adduced sufficient evidence of that intent to defeat summary judgment, summary judgment on qualified immunity grounds is inappropriate.”). 3. Personal Involvement Defendants argue that defendants Thornton and Thacker were not personally involved in the constitutional deprivations that Bussey alleges. “It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (internal quotations omitted)). Plaintiff must show more than “mere linkage in the prison chain of command,” and the doctrine of respondeat superior does not apply. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003). Instead, personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom un der which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Colon,"
},
{
"docid": "20758027",
"title": "",
"text": "process and equal protection clauses of the Fourteenth Amendment to the Constitution. “In the Second Circuit, personal involvement of the defendants in the alleged ... retaliation is a prerequisite to an award of damages under section 1983.” Appel v. Spiridon, No. 06 Civ. 1177, 2011 WL 3651353, at *13 (D.Conn. Aug. 18, 2011); see Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (“It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [42 U.S.C.] § 1983.”) (quotations and citations omitted). Accordingly, “the general doctrine of respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required.” Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.1989). As stated by the Second Circuit, in describing what are known as the Colon factors, a supervisory defendant in a Section 1983 case may be held liable when: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference ... by failing to act on information indicating that unconstitutional acts were occurring. Id. However, the law surrounding supervisory liability under Section 1983 is in a current state of flux. As explained last month by a district court sitting in the Southern District of New York: courts in this Circuit are divided over the question of how many of the so-called Colon factors survive in the wake of [Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)]. Compare Martinez v. Perilli, No. 09 Civ. 6470, 2012 WL 75249, at *4 (S.D.N.Y. Jan. 5, 2012) (“[T]he five Colon categories still apply after Iqbal.”), with Bellamy v. Mount Vernon Hosp., 07 Civ. 1801, 2009 WL 1835939, at"
},
{
"docid": "19270157",
"title": "",
"text": "(1989) (same). To avoid holding a supervisor liable solely for a subordinate’s violations a court must apply “rigorous standards of culpability and causation.” Jeffes v. Barnes, 208 F.3d 49, 61 (2d Cir.2000) (quoting Bd. of County Comm’rs v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). Thus, it is “well settled” that “personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.2006) (citation omitted); accord Pettus v. Morgenthau, 554 F.3d 293, 300 (2d Cir. 2009). The personal involvement and liability of supervisory personnel is established when the supervisory official has “actual or constructive notice of unconstitutional practices and demonstrates gross negligence or deliberate indifference by failing to act.” Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir.1989) (citation omitted); Blyden v. Mancusi, 186 F.3d 252, 265 (2d Cir.1999). Thus, a plaintiff may establish a supervisor’s personal involvement by showing that the supervisor: (1) directly participated in the violation, (2) failed to remedy the violation after being informed of it by report or appeal, (3) created a policy or custom under which the violation occurred, (4) was grossly negligent in supervising subordinates who committed the violation, or (5) was deliberately indifferent to the rights of others by failing to act on information that constitutional rights were being violated. Iqbal v. Hasty, 490 F.3d 143, 152-153 (2d Cir.2007) (citation omitted). After the fact notice of a violation of an inmate’s rights is insufficient to establish a supervisor’s liability for the violation. Receiving post hoc notice does not constitute personal involvement in the unconstitutional activity and cannot be said to have proximately caused the damage suffered by the inmate. Therefore, a supervisor may be liable for her failure to remedy a violation only in those circumstances where the violation is ongoing and the defendant has an opportunity to stop the violation after being informed of it. Similarly, liability may attach when a supervisor fails to act on reports of a staff member’s previous assaults on the plaintiff and the plaintiff is"
}
] |
857289 | 409-10 (4th Cir.1993), cert. denied, 510 U.S. 1169, 114 S.Ct. 1200, 127 L.Ed.2d 549 (1994); United States v. Rivera, 872 F.2d 507, 509 (1st Cir.), cert. denied, 493 U.S. 818, 110 S.Ct. 71, 107 L.Ed.2d 38 (1989). Absent evidence of a voluntary and intelligent choice by Allen, we agree with the rationale of these decisions and conclude that Allen’s failure to object constituted a forfeiture of his claim. Accordingly, we review his jeopardy claim for plain error. B. The double jeopardy clause protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), overruled on other grounds, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); REDACTED The Supreme Court has held that a “civil” penalty can constitute punishment for double jeopardy purposes to the extent that the penalty is properly characterized as a deterrent or retribution, and is far more than remedial. See United States v. Halper, 490 U.S. 435, 448-49, 109 S.Ct. 1892, 1901-02, 104 L.Ed.2d 487 (1989). Allen’s criminal prosecution clearly subjected him to punishment for purposes of double jeopardy. “Therefore, if the prior civil forfeiture proceeding, which was predicated on the same drug offense as charged in the indictment, constituted punishment, the Double Jeopardy Clause will bar the pending prosecution.” Salinas, 65 F.3d at 552 (citation omitted). Key to our analysis is whether the administrative forfeiture of Allen’s unclaimed property triggered the double | [
{
"docid": "11311440",
"title": "",
"text": "The forfeiture action was initiated in January 1993, and a declaration of forfeiture was entered in April 1993. Although notices of seizure were published and mailed to Salinas and his attorney, no one appeared to contest the forfeiture. The district court denied the motion to quash, holding that forfeiture of drug proceeds is not punishment. Salinas appeals, arguing that the protection against multiple punishments set forth in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), prohibits his prosecution on the drug charge. II. The Double Jeopardy Clause prohibits more than one “punishment” for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). The criminal prosecution facing Salinas clearly subjects him to punishment. Therefore, if the prior civil forfeiture proceeding, which was predicated on the same drug offense as charged in the indictment, constituted a punishment, the Double Jeopardy Clause will bar the pending prosecution. See United States v. Tilley, 18 F.3d 295, 297 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 573, 130 L.Ed.2d 490 (1994). Because Salinas did not contest the forfeiture, however, the government argues that he was never a party to the proceeding and, therefore, jeopardy did not attach. See United States v. Torres, 28 F.3d 1463 (7th Cir.), cert. denied, — U.S.-, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994). Although the Torres court clearly held that a defendant who did not make a claim to money subject to civil forfeiture never became a party to the forfeiture, the court also noted that it was never clear that Torres had an interest in the cash. Id. at 1466. Unlike Torres, Salmas informed the government that he owned the car in question, and the car was registered and titled in his name. Salinas argues that because notice of the forfeiture was sent directly to him, it indicates the government knew that the vehicle probably belonged to him. We acknowledge that other circuits have applied"
}
] | [
{
"docid": "17651003",
"title": "",
"text": "Penny failed to file a claim, individually, in the forfeiture action, and that claim was decided eventually on default judgment in 1990. The Double Jeopardy Clause of the Fifth Amendment has been interpreted to protect an individual from three types of abusive prosecution: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. United States v. Jackson, 983 F.2d 757, 768 (7th Cir.1993); see United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)); see also United States v. Dixon, — U.S. -, -, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993). Consequently, Supreme Court precedent has indicated that parallel civil and criminal proceedings for the same offense may violate the Double Jeopardy Clause’s prohibition against successive punishments for the same offense. See Department of Revenue v. Kurth Ranch, — U.S. -, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (holding that imposition of criminal sanction followed by the imposition of a civil post-forfeiture tax on illegal drugs is a violation of the Double Jeopardy Clause); Halper, 490 U.S. 435, 109 S.Ct. 1892 (1989) (holding that civil penalties imposed after criminal punishment can constitute a violation of the Double Jeopardy Clause of the Fifth Amendment); cf. Austin v. United States, — U.S. -, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (holding that civil forfeiture is punishment for purposes of triggering the Eighth Amendment’s excessive fines clause). The circuits that have considered the Court’s pronouncements have not agreed to their applicability. This case does not require that we determine whether these recent pronouncements from the Court afford Mr. Penny protection. In United States v. Torres, 28 F.3d 1463, 1465-66 (7th Cir.), cert. denied, — U.S. -, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994), this court held that an individual could not be placed in former jeopardy if, having received notice of the pending forfeiture proceeding, he did not make a claim to ownership of"
},
{
"docid": "23065644",
"title": "",
"text": "criminal indictment charging the defendants for the various drug crimes committed from 1986 to 1991. On February 5, 1993, the four defendants in this case entered into a stipulated forfeiture agreement with the United States. They agreed to forfeit significant amounts of cash, certificates of deposit, automobiles, and other personal property with a total value of approximately $650,000. Based on the stipulated agreements, the district court, on February 8, entered final judgment of forfeiture with respect to the personal property; however, the court stayed forfeiture proceedings with respect to defendants’ two homes pending outcome of the criminal trial. On April 7, the defendants filed a motion to dismiss the indictment on grounds that they were being subjected to multiple punishments for the same crimes in violation of the Double Jeopardy Clause. The defendants argued that they had already been “punished” for the same drug trafficking in the civil forfeiture proceeding. The district court rejected the argument and denied the motion. The defendants then filed this interlocutory appeal pursuant to Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). II The Double Jeopardy Clause prohibits more than one “punishment” for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The pending criminal trial in this ease, if it results in a conviction, would, of course, subject the defendants to punishment. Thus, if the prior civil forfeiture proceeding, which was predicated on the same drug trafficking offenses as charged in the indictment, constituted a “punishment,” the Double Jeopardy Clause will bar the pending criminal trial. The Supreme Court has classified a civil sanction for wrongful conduct as a “punishment” under the Double Jeopardy Clause when the sanction served a traditional goal of punishment, that is, deterrence or retribution, instead of the remedial goal of reimbursing the government and society for the costs that result from that wrongful conduct. United States v. Halper, 490 U.S. 435, 448-49, 109 S.Ct. 1892, 1902, 104 L.Ed.2d 487 (1989). In Halper, the Supreme Court established the analytical methodology that will guide our"
},
{
"docid": "17651002",
"title": "",
"text": "1770, 1776, 123 L.Ed.2d 508 (1993). Olano makes clear that a defendant waives a right when there is the “intentional relinquishment or abandonment of a known right.” Id. at -, 113 S.Ct. at 1777 (citations and quotations omitted). When a right is waived, it is not reviewable, even for plain error. Id. at -, 113 S.Ct. at 1776. By contrast, the simple failure to assert a right — forfeiture—is distinct from an intentional act — waiver. A forfeiture is reviewable under a plain error standard. We agree with our colleagues in the Fourth Circuit, see United States v. Jarvis, 7 F.3d 404, 409-10 (4th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1200, 127 L.Ed.2d 549 (1994), that failure to assert the double jeopardy defense in the trial court constituted a forfeiture. We can review such a claim, therefore, for plain error. 2. Although we may review Mr. Penny’s former jeopardy claim, we must conclude that, under the established ease law of the circuit, Mr. Penny cannot seek protection from prosecution in this defense. Mr. Penny failed to file a claim, individually, in the forfeiture action, and that claim was decided eventually on default judgment in 1990. The Double Jeopardy Clause of the Fifth Amendment has been interpreted to protect an individual from three types of abusive prosecution: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. United States v. Jackson, 983 F.2d 757, 768 (7th Cir.1993); see United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)); see also United States v. Dixon, — U.S. -, -, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993). Consequently, Supreme Court precedent has indicated that parallel civil and criminal proceedings for the same offense may violate the Double Jeopardy Clause’s prohibition against successive punishments for the same offense. See Department of Revenue v. Kurth Ranch, — U.S. -, 114 S.Ct. 1937, 128 L.Ed.2d"
},
{
"docid": "13462981",
"title": "",
"text": "appeal is properly before us. B. Double Jeopardy. The double-jeopardy clause provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. In addition to providing protection against double prosecutions, the clause also prohibits multiple punishments for the same offense. Grady v. Corbin, 495 U.S. 508, 510, 110 S.Ct. 2084, 2087, 109 L.Ed.2d 548 (1990). The Amiels assert that they have already been “punished” by the civil forfeiture, because the value of the properties seized is overwhelmingly disproportionate to the amount involved in their alleged offenses. They contend that the Supreme Court’s decision in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and our decision in United States v. 38 Whalers Cove Drive, 954 F.2d 29 (2d Cir.1992) [hereinafter Whalers Cove ], cert. denied sub nom. Levin v. United States, — U.S.-, 113 S.Ct. 55, 121 L.Ed.2d 24 (1992), compel a finding that the civil forfeiture constituted “punishment” for double-jeopardy purposes. In Halper, the Supreme' Court held that under certain circumstances a civil penalty may be a punishment for purposes of the double-jeopardy clause. Irwin Halper filed sixty-five false medical-insurance claims, for which he was convicted under the criminal false-claims statute, 18 U.S.C. § 287. The government then brought a civil action against him under the False Claims Act, 31 U.S.C. §§ 3729-3731. Although his false claims resulted in a total overpayment of only $585, the statute authorized the recovery of more than $130,000 in penalties. 490 U.S. at 439, 109 S.Ct. at 1896. The Court held that the double-jeopardy clause protected a defendant who has already been punished in a criminal prosecution from being subjected to an additional civil sanction “to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” Id., at 448-49, 109 S.Ct. at 1902.. However,'the Court limited its holding to “the rare case * * * where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he"
},
{
"docid": "14473159",
"title": "",
"text": "in his civil forfeiture action was “analogous to a guilty plea entered pursuant to a plea agreement in a criminal case.” Id. at 571 (citing, inter alia, United States v. Kim, 884 F.2d 189, 191 (5th Cir.1989); Fransaw v. Lynaugh, 810 F.2d 518, 523 & n. 9 (5th Cir.), cert. denied, 483 U.S. 1008, 107 S.Ct. 3237, 97 L.Ed.2d 742 (1987)). “[T]he fact that there has been no trial in a civil forfeiture proceeding does not preclude the attachment of jeopardy to a forfeiture judgment,” because “[jjeopardy attaches in a nontrial forfeiture proceeding when the court accepts the stipulation of forfeiture and enters the judgment of forfeiture.” Id. at 572. The defendant must be a party to the forfeiture proceeding for jeopardy to attach. Otherwise he was never at risk of having a forfeiture judgment entered against him. United States v. Torres, 28 F.3d 1463, 1465 (7th Cir.), cert. denied, - U.S. -, 115 S.Ct. 669, 130 L.Ed.2d 603 (1994). There is no such problem here. Gonzalez was indisputably a party to the proceeding. The weight of the authority prompts us to treat Gonzalez’s settlement just as we would a guilty plea. Consequently, jeopardy attached upon acceptance of the settlement agreement. Analysis “No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb ...” U.S. Const, amend. V. The Constitution contemplates three types of double jeopardy: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.” United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). The Supreme Court in Halper took up the question of “whether and under what circumstances a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause.” Id. at 446, 109 S.Ct. at 1901. The Court resolved that a civil sanction is punishment if it serves the twin aims of retribution and deterrence and not the remedial goal of compensating the government. Id. at 448-49, 109 S.Ct. at 1901-02. In Halper, the"
},
{
"docid": "9820100",
"title": "",
"text": "by Allen, we agree with the rationale of these decisions and conclude that Allen’s failure to object constituted a forfeiture of his claim. Accordingly, we review his jeopardy claim for plain error. B. The double jeopardy clause protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), overruled on other grounds, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); United States v. Salinas, 65 F.3d 551, 552 (6th Cir.1995). The Supreme Court has held that a “civil” penalty can constitute punishment for double jeopardy purposes to the extent that the penalty is properly characterized as a deterrent or retribution, and is far more than remedial. See United States v. Halper, 490 U.S. 435, 448-49, 109 S.Ct. 1892, 1901-02, 104 L.Ed.2d 487 (1989). Allen’s criminal prosecution clearly subjected him to punishment for purposes of double jeopardy. “Therefore, if the prior civil forfeiture proceeding, which was predicated on the same drug offense as charged in the indictment, constituted punishment, the Double Jeopardy Clause will bar the pending prosecution.” Salinas, 65 F.3d at 552 (citation omitted). Key to our analysis is whether the administrative forfeiture of Allen’s unclaimed property triggered the double jeopardy clause. We begin by noting that in pursuit of his administrative remedy, Allen only filed a petition for remission, and neglected to file a claim of ownership and bond as directed by 19 U.S.C. § 1608. The Seventh, Ninth and Tenth Circuits have all held that the filing of a petition for remission does not serve to contest the forfeiture, see United States v. German, 76 F.3d 315, 320 (10th Cir.1996); United States v. Vega, 72 F.3d 507, 514 (7th Cir.1995) (citing United States v. Ruth, 65 F.3d 599, 604 n. 2 (7th Cir.1995)), cert. denied, - U.S. -, 116 S.Ct. 2529, 135 L.Ed.2d 1053 (1996); and United States v. Wong, 62 F.3d 1212, 1214 (9th Cir.1995), but rather is in the nature of a request for a pardon. See Vega, 72 F.3d at 514 (citing Ruth, 65 F.3d at 604 n. 2); see"
},
{
"docid": "6685778",
"title": "",
"text": "accidents and injuries “resulting in possible patient injury” to the Colorado Department of Health; and (2) file a copy of that report in the patient’s medical record. The evidence is clear from the record that this conviction for failing to report the accident or incident occurred while Grundmeier was a patient at ACCW, and that the conviction was connected to the medical services ACCW and its employees provided to Grundmeier. In sum, the court is satisfied that the record supports the Secretary’s conclusion that Westin’s conviction was “in connection with the delivery of a health care item or service.” Double Jeopardy Westin argues in the alternative that the exclusion violates the Double Jeopardy Clause of the Fifth Amendment. The Sec retary argues that the exclusion does not violate the Double Jeopardy Clause because (1) the Double Jeopardy Clause is a bar to two punitive sanctions, and the Inspector General’s exclusion did not constitute a second punitive sanction; and (2) a federal prosecution is not barred by a prior state prosecution of the same person for the same acts. The Secretary’s analysis is correct. “The Fifth Amendment’s guarantee against double jeopardy ‘protects against multiple punishments for the same offense.’ ” Mansfield v. Champion, 992 F.2d 1098, 1100 (10th Cir.1993) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)); see United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989) (“[T]he Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.”). The Double Jeopardy Clause applies only to punitive sanctions. See Id. at 448-449, 109 S.Ct. at 1901-1902; Manocchio v. Kusserow, 961 F.2d 1539, 1541 (11th Cir. 1992). In Halper, the Supreme Court held that “under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but"
},
{
"docid": "23065645",
"title": "",
"text": "651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). II The Double Jeopardy Clause prohibits more than one “punishment” for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The pending criminal trial in this ease, if it results in a conviction, would, of course, subject the defendants to punishment. Thus, if the prior civil forfeiture proceeding, which was predicated on the same drug trafficking offenses as charged in the indictment, constituted a “punishment,” the Double Jeopardy Clause will bar the pending criminal trial. The Supreme Court has classified a civil sanction for wrongful conduct as a “punishment” under the Double Jeopardy Clause when the sanction served a traditional goal of punishment, that is, deterrence or retribution, instead of the remedial goal of reimbursing the government and society for the costs that result from that wrongful conduct. United States v. Halper, 490 U.S. 435, 448-49, 109 S.Ct. 1892, 1902, 104 L.Ed.2d 487 (1989). In Halper, the Supreme Court established the analytical methodology that will guide our determination of whether the civil forfeiture of the proceeds from illegal drug sales in this case served a punitive purpose, or a wholly remedial purpose. As explained below, this methodology focuses on the relationship between the amount of the civil sanction and the amount required to serve the remedial purpose of reimbursing the costs incurred by the government and society as a result of the wrongful conduct. We should make clear, however, that the sanction in Halper did not involve the proceeds from the crimes charged and the fact that the property forfeited in today’s case constitutes unlawful proceeds is crucial to our analysis. In Halper, 490 U.S. at 437-39, 109 S.Ct. at 1896-97, the government secured the conviction of a defendant on sixty-five counts of violating the False Claims Act by submitting fraudulent medicare claims. His crimes, however, had only netted him $585 in excess payments from the government, and the district court estimated the government’s costs at $16,000. Nevertheless, the government, in a separate civil action, sought to impose an additional penalty of"
},
{
"docid": "23071031",
"title": "",
"text": "during the investigation, prosecution, or sentencing of the instant offense.” U.S.S.G. § 3C1.1. The district court assessed this enhancement against Hawley because he failed to appear for arraignment as ordered. Hawley contends this constitutes double punishment in violation of the Double Jeopardy Clause because judgment previously was entered against him on his $50,000 appearance bond as a result of the same conduct. We review the district court’s factual findings as to the obstruction of justice under the clearly erro neous standard, and review de novo the district court’s legal interpretation of the Sentencing Guidelines. United States v. Janus Industries, 48 F.3d 1548, 1559-60 (10th Cir.), cert. denied, — U.S.-, 116 S.Ct. 87, 138 L.Ed.2d 44 (1995). We also review de novo the district court’s legal conclusion regarding double jeopardy. United States v. Cardall, 885 F.2d 656, 665 (10th Cir.1989). The Fifth Amendment guarantee against double jeopardy protects against a second prosecution for the same offense and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969). Hawley’s double jeopardy argument is based solely upon the latter protection against multiple punishments for the same offense. We have recognized that the forfeiture of a bail bond is a civil proceeding arising from a criminal one. United States v. Brouillet, 736 F.2d 1414, 1415 (10th Cir.1984). However, the fact that a sanction is fairly characterized as “civil” does not mean that it can never constitute punishment for the purposes of double jeopardy analysis. The Supreme Court in United States v. Halper, 490 U.S. 435, 447-48, 109 S.Ct. 1892, 1901-02, 104 L.Ed.2d 487 (1989), stated that: [T]he labels “criminal” and “civil” are not of paramount importance. It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both may be served by criminal penalties_ [T]he determination of whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well"
},
{
"docid": "9820099",
"title": "",
"text": "107 S.Ct. 2680, 2686, 97 L.Ed.2d 1 (1987) (concluding double jeopardy clause is not implicated where defendant enters a plea bargain); Broce, 488 U.S. at 575, 109 S.Ct. at 765 (finding that guilty plea made voluntarily and intelligently was not subject to collateral attack on appeal). However, in Allen’s case, it appears that he simply failed to raise this issue below, and took no affirmative steps to voluntarily waive his claim. In similar circumstances, three other circuits have concluded that a failure to assert double jeopardy at the trial level constituted a forfeiture of that right, and not a waiver. See United States v. Penny, 60 F.3d 1257, 1261 (7th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996); United States v. Jarvis, 7 F.3d 404, 409-10 (4th Cir.1993), cert. denied, 510 U.S. 1169, 114 S.Ct. 1200, 127 L.Ed.2d 549 (1994); United States v. Rivera, 872 F.2d 507, 509 (1st Cir.), cert. denied, 493 U.S. 818, 110 S.Ct. 71, 107 L.Ed.2d 38 (1989). Absent evidence of a voluntary and intelligent choice by Allen, we agree with the rationale of these decisions and conclude that Allen’s failure to object constituted a forfeiture of his claim. Accordingly, we review his jeopardy claim for plain error. B. The double jeopardy clause protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), overruled on other grounds, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); United States v. Salinas, 65 F.3d 551, 552 (6th Cir.1995). The Supreme Court has held that a “civil” penalty can constitute punishment for double jeopardy purposes to the extent that the penalty is properly characterized as a deterrent or retribution, and is far more than remedial. See United States v. Halper, 490 U.S. 435, 448-49, 109 S.Ct. 1892, 1901-02, 104 L.Ed.2d 487 (1989). Allen’s criminal prosecution clearly subjected him to punishment for purposes of double jeopardy. “Therefore, if the prior civil forfeiture proceeding, which was predicated on the same drug offense as charged in the indictment, constituted punishment, the Double"
},
{
"docid": "1146747",
"title": "",
"text": "315, 558 A.2d 715 (1989). Some of the federal cases involved forfeiture statutes against real and personal property and distinguish Halper on that ground. Other cases are factually inapplicable or contain dicta. The Double Jeopardy Clause of the Fifth Amendment protects against three abuses; (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The third of these protections is the one which Plaintiffs claim the D.O.R. has violated by making a substantial tax assessment when Plaintiff/Debtors were convicted of the crime on which the tax is based. Basically, Plaintiffs argue that the imposition of this penalty, although done pursuant to a “civil” procedure, is in reality a further punishment for the criminal conduct to which each Debtor pled guilty. In making its argument, Plaintiffs rely on the recent decision of the United States Supreme Court in United States v. Halper, supra. In Halper, the Court considered the question of “whether and under what circumstances a civil penalty may constitute punishment for purposes of the Double Jeopardy Clause.” Id. 490 U.S. at 446, 109 S.Ct. at 1901. A unanimous court held that “a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can be explained only as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.” Id. 490 U.S. at 448, 109 S.Ct. at 1902. The Double Jeopardy Clause, the court went on to hold, prohibits the imposition of such a civil sanction “to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” Id. It is implicated when “the sanction [is] overwhelmingly disproportionate to the damages [defendant] has caused.” Id. In determining the purpose behind a civil sanction, the Court must look at more than just the language of the statute itself. As the Halper court stated: “... [W]hile recourse to"
},
{
"docid": "4105183",
"title": "",
"text": "the summer of 1986. The prosecution’s evidence consisted of testimony from former RCGA employees, financial planners, suppliers, and customers, as well as coin dealers and numismatic experts. After almost six weeks of testimony, the jury convicted Kayne and Kalp of 15 counts of fraud. The prosecution dropped nine counts prior to their submission to the jury, the jury acquitted on four counts, and the district judge acquitted on one count. Defendants have been sentenced to 36 months’ imprisonment and ordered to pay $339,466 in restitution. The sentence has been stayed pending resolution of this appeal. II. DISCUSSION A. Double Jeopardy Both defendants have asserted that jeopardy attached to the 1986 civil litigation and should bar this prosecution. This defense has surfaced for the first time on appeal. Even though the fundamental constitutional issue of double jeopardy was not raised at trial, we will entertain the appeal, but review only for plain error. See, e.g., United States v. Rivera, 872 F.2d 507, 509 (1st Cir.), cert. denied, 493 U.S. 818, 110 S.Ct. 71, 107 L.Ed.2d 38 (1989). The Double Jeopardy clause protects against “multiple punishments for the same offense,” even if one of the proceedings is civil and one criminal, regardless of the sequence. United States v. Halper, 490 U.S. 435, 439, 109 S.Ct. 1892, 1896-97, 104 L.Ed.2d 487 (1989). In determining whether the protections of the Double Jeopardy Clause are implicated, our first line of inquiry is whether the civil sanction constituted “punishment,” see United States v. Stoller, 78 F.3d 710, 720-21 (1st Cir.1996); our second is whether the purported punishments are for the same offense, Halper, 490 U.S. at 439, 109 S.Ct. at 1896-97 . Because we conclude that the civil sanction in this ease did not constitute punishment, we discern no plain error. Defendants argue that the civil proceedings against them were the equivalent of civil forfeiture proceedings and imposed punishment for the same offense in two or more separate proceedings. In characterizing their settlement with the Bankruptcy Trustee and the FTC as a punitive forfeiture, they cite two expansive double jeopardy opinions from other circuits which, since"
},
{
"docid": "2329005",
"title": "",
"text": "questions raised by this appeal. See Thomas v. Comm’r of the IRS, 62 F.3d 97, 99 (4th Cir.1995) (stating that appellate courts should undertake de novo review when determining whether the Fifth Amendment’s Double Jeopardy Clause has been violated). The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. Among other things, the Clause protects individuals against suffering multiple punishments for the same offense. See United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 2855-56, 125 L.Ed.2d 556 (1993) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969)). Although it was once thought that a sanction imposed in a “civil” proceeding could never constitute “punishment” for double jeopardy purposes, that is no longer the case. See United States v. Halper, 490 U.S. 435, 447, 109 S.Ct. 1892, 1901, 104 L.Ed.2d 487 (1989) (noting that “[i]t is commonly understood that civil proceedings may advance punitive as well as remedial goals”). Rather, double jeopardy analysis should properly focus on whether the sanction is punitive or remedial in nature. See id.; Thomas, 62 F.3d at 100. As a result, resolution of this case turns on whether a one-year suspension of driving privileges, even though imposed in a civil proceeding, is properly characterized as punitive or remedial in nature. The district court primarily relied on Hal-per, 490 U.S. at 435, 109 S.Ct. at 1894-95, Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), and Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), in holding that the suspension of driving privileges for one year is punitive in nature. See Imngren, 914 F.Supp. at 1328-30. On appeal, Imngren and Johnson base their arguments on these same three cases. (Appellee’s Br. at 9, 18-22.) However, after the district court rendered its decision and the parties filed their briefs with this court, the Supreme Court in United States v. Ursery,"
},
{
"docid": "21037237",
"title": "",
"text": "seemed clear: the Double Jeopardy Clause precludes only successive criminal prosecutions, and thus it will not bar a forfeiture action brought after an initial criminal prosecution as long as the forfeiture action can properly be characterized as a civil proceeding. But the Supreme Court’s decision in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), changed matters drastically. See United States v. Millan, 2 F.3d 17, 19 (2d Cir.1993) (calling Halper the “seminal case in this realm of double jeopardy jurisprudence”), cert. denied, — U.S. —, 114 S.Ct. 922, 127 L.Ed.2d 215 (1994). In Halper, the Supreme Court focused on the “multiple punishment” component of the Double Jeopardy Clause and held that some sanctions or penalties, even if la-belled “civil” and imposed in civil proceedings, may still constitute “punishment” for the purpose of double jeopardy analysis. See 490 U.S. at 440-48, 109 S.Ct. at 1897-1902. Regardless of the nature of the proceeding in which the sanction is imposed, a sanction that serves punitive goals, if imposed after another punishment for the same offense, runs afoul of “the Double Jeopardy Clause’s proscription of multiple punishments.” Id. at 447,109 S.Ct. at 1901. For “under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” Id. at 448-49, 109 S.Ct. at 1901-02. Because Halper arose in the context of a statutory penalty under the False Claims Act and barely mentioned the Supreme Court’s prior civil forfeiture/double jeopardy decisions in 89 Firearms and One Lot Emerald Cut Stones, lower courts were left to determine for themselves what Halper meant for civil forfeiture actions. In United States v. 88 Whalers Cove Drive, 954 F.2d 29 (2d Cir.), cert. denied, — U.S. —, 113 S.Ct. 55, 121 L.Ed.2d 24 (1992), this Court had occasion to examine the implication of Halper for such proceedings. As in the instant case, the claimant in Whalers Cove had been criminally"
},
{
"docid": "18660216",
"title": "",
"text": "put in jeopardy of life or limb-” U.S. Const, amend. V. The Double Jeopardy Clause rests on the premise that an individual should not be required to defend him or herself more than once against charges based on the same alleged criminal conduct. Abbate v. United States, 359 U.S. 187, 198-99, 79 S.Ct. 666, 672-73, 3 L.Ed.2d 729 (1959) (opinion of Brennan, J.). The United States Supreme Court has consistently held that the clause prohibits three distinct government actions: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. Department of Revenue of Mont. v. Kurth Ranch, — U.S. -, - , 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767 (1994); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). See also United States v. Amiel, 995 F.2d 367, 369 (2d Cir.1993). Brophil’s claim arises under the latter of these three protections; he alleges that the Government’s prosecution of both a civil forfeiture action and a criminal prosecution against him constituted multiple punishments for the same offense. When analyzing a claim under the Double Jeopardy Clause, the court must first determine whether the Clause applies at all. In order for the Clause to come into play, the first proceeding against a defendant must have put him or her in jeopardy. Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 1065, 43 L.Ed.2d 265 (1975) (“an individual must suffer jeopardy before he can suffer double jeopardy”). If the first proceeding placed the defendant in jeopardy, the court must then consider whether the second proceeding exposed him to multiple punishment in violation of the Double Jeopardy Clause. Under the United States Supreme Court’s decisions in Kurth Ranch and in United States v. Halper 490 U.S. 435, 436, 109 S.Ct. 1892, 1895, 104 L.Ed.2d 487 (1989), a two-step analysis is required to determine whether the Government has subjected a defendant to multiple punishment by instituting both a criminal prosecution and a civil forfeiture proceeding: (1) whether the civil forfeiture action"
},
{
"docid": "11023563",
"title": "",
"text": "than the actual imposition of two punishments for the same offense; by its terms, it protects a criminal defendant from being twice put in jeopardy for such punishment.” Id. — U.S. at-, 115 S.Ct. at 2204-2205. In the instant case, if defendant was punished by the forfeiture, the prospect of a criminal trial and further punishment places him in jeopardy of prohibited multiple punishments. Thus, it is appropriate and required to adjudicate his claim prior to trial and on appeal, before he is subjected to the risk of a second punishment for the same offense. II. I turn to the merits of defendant’s double jeopardy claim. The question presented is whether forfeiture pursuant to 21 U.S.C.A. § 881(a)(6) (West 1981) constitutes punishment for purposes of the Double Jeopardy Clause. Three recent Supreme Court decisions guide our analysis. See Department of Revenue v. Kurth Ranch, — U.S. —, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994); Austin v. United States, — U.S. -, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). In United States v. Halper, the Supreme Court considered “whether and under what circumstances a civil penalty may constitute ‘punishment’ for the purposes of double jeopardy analysis.” 490 U.S. at 436, 109 S.Ct. at 1895. The Court fashioned the following test: “a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment.” Id. at 448, 109 S.Ct. at 1902. Specifically, the Court held that the Double Jeopardy Clause’s prohibition against multiple punishments for the same offense was violated where a defendant who already had been punished in a criminal prosecution was subjected to an additional civil sanction to the extent that the second sanction served the traditional goals of punishment — deterrence and retribution. Id. at 449, 109 S.Ct. at 1902. The Supreme Court recently applied the Halper test in Department of Revenue v. Kurth Ranch, supra. There, the Supreme Court considered whether a state tax imposed on the"
},
{
"docid": "6416083",
"title": "",
"text": "the same offense to be twice put in jeopardy of life or limb ...” U.S. Const, amend. V. The Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969). Although the text mentions only harms to life or limb, the Amendment covers imprisonment and monetary penalties as well. See United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). The Supreme Court clearly distinguishes between the effect of prior prosecutions and the effect of prior punishments in its Double Jeopardy jurisprudence. Thus, in a number of cases the government has attempted to conflate the two and contend that only if a punishment resulted from a criminal prosecution would it be affected by the Double Jeopardy Clause and the closely related Excessive Fines Clause. See, e.g., Austin v. United States, — U.S. -, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); Halper, 490 U.S. at 441, 446-451, 109 S.Ct. at 1897-98, 1900-03. In each case, the Supreme Court has kept the two issues separate, concluding that a punishment need not necessarily flow from a criminal prosecution in order to implicate these Constitutional provisions. Thus the conclusion that a civil penalty or burden triggers the double jeopardy clause does not necessarily mean that the civil proceeding is itself a criminal prosecution to which all attendant safeguards must apply. See Austin, — U.S. at-, 113 S.Ct. at 2804-5 (distinguishing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) and United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980) on this basis). It is undisputed that the in rem forfeiture proceedings of which Collette complains did not constitute criminal prosecutions. See, e.g., United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361-62, 104 S.Ct. 1099, 1104-05, 79 L.Ed.2d 361 (1984) and compare the discussion of this distinction in Austin, — U.S. at-, 113"
},
{
"docid": "11170122",
"title": "",
"text": "the Eighth Amendment’s Excessive Fines Clause. It follows from 'Austin, defendant argues, that his second pumshment — the criminal sentence — was imposed in violation of the Double Jeopardy Clause. All materials filed, and the arguments of counsel presented in open court on July 20, 1994, have been fully considered. II. SCOPE OF DOUBLE JEOPARDY PROTECTION The Double Jeopardy Clause “represents a fundamental ideal in our constitutional heritage.” Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). It protects against a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). The Clause is not limited to “life or limb” sanctions; it applies to imprisonment and monetary penalties as well. See, e.g., United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); Ex Parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874). Multiple pumshments are permissible if imposed in the same proceeding; they are barred if imposed in separate proceedings. Halper, 490 U.S. at 450-51, 109 S.Ct. at 1902-03; Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679-80, 74 L.Ed.2d 535 (1983). III. FORFEITURE OF PROPERTY UNDER 21 U.S.C. § 881(a)(7) AS PUNISHMENT The Supreme- Court in United States v. Halper, supra, held that a civil sanction is a pumshment for double jeopardy purposes to the extent that it “may not be fairly characterized as remedial, but only as a deterrent or retribution.” The label “civil” attached to the penalty makes no difference. 490 U.S. at 448-49, 109 S.Ct. at 1902. Citing Halper, this court in 1990 denied defendant McCaslin’s pretrial motion for dismissal of his criminal prosecution on double jeopardy grounds, finding that the earlier forfeiture of his $30,000 net equity in real estate had been “clearly compensatory” and not punitive. Dkt. # 34. The Ninth Circuit affirmed on a different basis, i.e., that a civil forfeiture “is directed against the property and not at an individual”"
},
{
"docid": "6685779",
"title": "",
"text": "the same acts. The Secretary’s analysis is correct. “The Fifth Amendment’s guarantee against double jeopardy ‘protects against multiple punishments for the same offense.’ ” Mansfield v. Champion, 992 F.2d 1098, 1100 (10th Cir.1993) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)); see United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989) (“[T]he Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.”). The Double Jeopardy Clause applies only to punitive sanctions. See Id. at 448-449, 109 S.Ct. at 1901-1902; Manocchio v. Kusserow, 961 F.2d 1539, 1541 (11th Cir. 1992). In Halper, the Supreme Court held that “under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” Id. 490 U.S. at 448-449, 109 S.Ct. at 1902. In Manocchio, the Eleventh Circuit rejected a medical doctor’s attack against the mandatory exclusion of § 1320a-7 as violative of the Double Jeopardy Clause. In Manocchio, a medical doctor had entered a plea of guilty to making fraudulent demand against the United States by submitting a fraudulent Medicare claim in the amount of $62.40. The Office of the Inspector General subsequently excluded the doctor from participation in Medicare programs for a period of five years. The court of appeals concluded that the mandatory exclusion under § 1320a-7 is remedial, not punitive, in nature: In order to determine whether the exclusionary period is punitive or remedial, the court must look at the congressional intent at the time of passage of the statute. An examination of the legislative history of the five-year minimum mandatory exclusion period in section 1320a-7 establishes that the sanction is civil and remedial. The Senate Finance Committee report states, the basic purpose of the Medicare and Medicaid Patient"
},
{
"docid": "6571870",
"title": "",
"text": "1. Tamez’s Criminal Conviction Did Not Constitute Second Jeopardy Defendant Tamez specifically argues that the initial “punishment,” or jeopardy, in this case occurred on October 27, 1989, when he signed the stipulation of forfeiture. (Ct. Rec. 114 at 7-8). He further maintains that the second “punishment” only manifested once he began serving his court imposed prison sentence, which commenced on October 27, 1989, after the signing of the forfeiture stipulation. Basing his argument on $405,089.23, Tamez claims that the criminal conviction must be set aside as violative of the Fifth Amendment protection against double jeopardy. However, careful examination of the caselaw reveals that Tamez’s analysis of the point at which jeopardy attaches in the criminal and civil forfeiture contexts is incorrect. a. Successive Prosecutions or Multiple Punishments? The Double Jeopardy Clause of the Fifth Amendment protects against two distinct types of abuses: successive prosecutions for the same offense and multiple punishments for the same offense. United States v. Dixon, — U.S. -, -, 113 S.Ct. 2849, 2855-56, 125 L.Ed.2d 556 (1993); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); United States v. Saccoccia, 18 F.3d 795, 798 (9th Cir.1994); United States v. McCormick, 992 F.2d 437, 439 (2nd Cir.1993); see also United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). Whether the type of case presented by Tamez’s factual situation, where a person is subject to both a civil forfeiture and criminal prosecution for the same offense, falls under the “successive prosecutions” or “multiple punishments” context, is of the utmost importance. The reason for this is that the point at which jeopardy attaches appears to differ according to the context involved. For example, where a person claims to have been subjected to “successive prosecutions” for the same offense, jeopardy is considered to attach in the initial criminal jury trial once the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 29, 98 S.Ct. 2156, 2157, 57 L.Ed.2d 24 (1978); United States"
}
] |
100170 | "received notice of the hearing and filed an objection to the approval of the sale to Maldonado. . Since Jessen’s estate notes that it continues to refer to itself as “Jessen” in its briefs “for convenience,” we do the same. . All statutory provisions cited in this Opinion refer to Title 28 of the United States Code, unless otherwise stated. . In re McCowan's statement that, ""[i]t is not relevant to the analysis whether the underlying bankruptcy case has been closed,” may be helpful to lessen, but such a rule is a necessary, not a sufficient, condition of jurisdiction here. 296 B.R. at 4. . lessen also discusses two additional cases. First, he cites State of REDACTED which we consider below. Second, he cites the discussion in Fietz v. Great Western Savings (In re Fietz), 852 F.2d 455, 456 (9th Cir. 1988), of pre-confirmation matters, but our reasoning in In re Fietz is necessarily less on point than In re Pegasus Gold Corp., which is a more recent case and determined the ""close nexus” test should apply when the bankruptcy estate is post-confirmation. See In re Pegasus Gold Corp., 394 F.3d at 1194. . The situation here may not be identical because in addition to the third party defendants (here Maldonado and Jessen), the debtor (Ray) was named in the state court complaint; however, the core insights that the bankruptcy proceeding is over, that a ruling on the" | [
{
"docid": "18150800",
"title": "",
"text": "re Pegasus Gold Corp., 296 B.R. 227 (D.Nev.2003). This appeal followed. With respect to the determination that the State waived its sovereign immunity, the bankruptcy court’s and district court’s orders on this issue are immediately appealable under the “collateral order doctrine.” Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). Moreover, we are also required to resolve issues of subject matter jurisdiction in an interlocutory appeal from a denial of immunity, because “if appellate courts lack jurisdiction, they cannot review the merits of these properly appealed rulings.” Meredith v. Oregon, 321 F.3d 807, 816 (9th Cir.2003). Thus, we consider the existence of subject matter jurisdiction before determining the sovereign immunity issue. STANDARD OF REVIEW Questions of subject matter jurisdiction are reviewed de novo, In re McGhan, 288 F.3d 1172, 1178 (9th Cir.2002), as are questions of sovereign immunity. In re Bliemeister, 296 F.3d 858, 861 (9th Cir.2002). DISCUSSION I. Subject Matter Jurisdiction A bankruptcy court has jurisdiction over “all civil proceedings arising under title 11, or arising in or related to cases under title II.” 28 U.S.C. § 1334(b). Proceedings “arising in” bankruptcy cases are generally referred to as “core” proceedings, and essentially are proceedings that would not exist outside of bankruptcy, such as “matters concerning the administration of the estate,” “orders to turn over property of the estate,” and “proceedings to determine, avoid, or recover preferences.” 28 U.S.C. § 157(b)(2); see also In re Harris Pine Mills, 44 F.3d 1431, 1435-37 (9th Cir.1995). The bankruptcy court also has jurisdiction over a much broader set of cases: those proceedings that are “related to” a bankruptcy case. The Ninth Circuit has adopted the “Pacor test” for determining the scope of “related to” jurisdiction. In re Fietz, 852 F.2d 455, 457 (9th Cir.1988). Under this formulation, the test is whether: the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy. Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if"
}
] | [
{
"docid": "17593557",
"title": "",
"text": "processing plant’s fraudulent conveyance claim, where the State was also a creditor but not a party to the settlement agreement. Id. at 546^17. The district court affirmed the bankruptcy court’s reopening of the case. We reversed because “there was no confirmed plan and there is no claim that the dispute between two creditors, [the processing plant and the State], would have any effect on the now-closed bankruptcy estate.” Id. at 548. The creditors’ dispute was outside the scope of bankruptcy court post-confirmation jurisdiction because the dispute “implicated the term of a settlement agreement approved by the court as a precondition of the dismissal of [debtor’s] bankruptcy. But that agreement has been fully implemented with respect to [the debtor].” Id. Contrary to the BAP’s characterization, Valdez Fisheries did not restrict or refine the meaning of the close nexus test. Rather, we simply concluded that the claims in the ease were outside those matters “affecting the interpretation, implementation, consummation, execution, or administration of the confirmed plan.” Pegasus Gold Corp., 394 F.3d at 1194. Because there was no confirmed plan in Valdez Fisheries, we reached the same conclusion separately under both the pre-confirmation Fietz/Pa-cor test and the post-confirmation Pegasus Gold “close nexus” test. In interpreting Valdez Fisheries, the BAP improperly conflated the two tests. The BAP reasoned that “to show a close nexus, the outcome of a dispute must ‘alter the debtor’s rights, liabilities, options, or freedom of action or in any way impact upon the handling and administration of the bankrupt estate.’ ” In re Wilshire Courtyard, 459 B.R. at 429 (quoting In re Fietz, 852 F.2d at 457). The BAP’s reasoning makes the pre-confirmation Fietz/Pacor test of whether a separate civil proceeding could “alter the debtor’s rights, liabilities, options or freedom of action ... [or] in any way impact[ ] upon the handling and administration of the bankruptcy estate,” part and parcel of the post-confirmation Pegasus Gold post-confirmation “close nexus” test. The two are distinct. The BAP recognized why when it stated, “[t]he Pacor test, however, proved less than useful in determining related to jurisdiction after confirmation of a plan because"
},
{
"docid": "4495008",
"title": "",
"text": "was no “related to” jurisdiction over a claim, though part of the bankruptcy estate, if it was filed after the Chapter 13 plan had been confirmed and all of the property of the estate had vested in the debtor. Id. at 458-59. Here, when Sea Hawk filed its adversary proceeding, VFDA’s Chapter 11 case had been dismissed and a final decree entered. When the bankruptcy court later reopened the bankruptcy case, it did so “for the limited purpose of making a determination of whether the Settlement Agree ment ... releases Sea Hawk’s state court claims against the State of Alaska.” That determination could not conceivably “alter the debtor’s rights, liabilities, options, or freedom of action ... [or] in any way impact[] upon the handling and administration of the bankrupt estate.” Fietz, 852 F.2d at 457 (quoting Pacor, 743 F.2d at 994); see In re Hanks, 182 B.R. 930, 935 (Bankr.N.D.Ga.1995) (“the enforcement of the settlement agreement cannot have .a conceivable effect on the bankruptcy case as no case is in existence at that time”). The State argues that to preserve the bankruptcy court’s ability to interpret its prior rulings, a different standard applies to postconfirmation proceedings. The Third Circuit, after reviewing the post-confirmation cases, concluded that “the essential inquiry appears to be whether there is a close nexus to the bankruptcy plan or proceeding sufficient to uphold bankruptcy court jurisdiction.” In re Resorts Int’l. Inc., 372 F.3d 154, 166-67 (3d Cir.2004). The court concluded that matters affecting the interpretation, implementation, consummation, .execution, or administration of the confirmed plan will typically have the requisite close nexus. We adopted the close nexus test in In re Pegasus Gold Corp., 394 F.3d 1189, 1194 (9th Cir.2005). There, we found the requisite close nexus to exist where- the post-confirmation claims asserted that the defendant breached the Reorganization Plan and where the outcome of those claims could affect the implementation and execution of the Plan. This is not. a proceeding falling within the rationale of the close nexus test. Here, there was no confirmed plan and there is no claim that the dispute between two"
},
{
"docid": "17593555",
"title": "",
"text": "F.2d 455, 457 (9th Cir.1988) (citing Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984)). Surveying the courts that had applied a limited version of the Pacor test in the post-confirmation context, we recognized that the Pacor test of whether “ ‘the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy.... [I]f the outcome could alter the debtor’s rights, liabilities, options, or freedom of action ... and which in any way impacts upon the handling and administration of the bankrupt estate’ ” was “somewhat overbroad in the post-confirmation context.” Pegasus Gold Corp., 394 F.3d at 1193, 1194 (quoting In re Fietz, 852 F.2d at 457). The “close nexus” test determines the scope of bankruptcy court’s post-confirmation “related to” jurisdiction. Pegasus Gold Corp., 394 F.3d at 1194. As adopted from the Third Circuit, the test encompasses matters “affecting the ‘interpretation, implementation, consummation, execution, or administration of the confirmed plan.’ ” Id. (quoting Binder v. Price Waterhouse & Co. (In re Resorts Int'l, Inc.), 372 F.3d 154, 166-67 (3d Cir.2004)). The close nexus test “recognizes the limited nature of post-confirmation jurisdiction but retains a certain flexibility.” Id. Applying the close nexus test in Pegasus Gold, we held that “related to” jurisdiction existed because some claims concerning post-confirmation conduct— specifically, alleged breach of the liquidation/reorganization plan and related settlement agreement as well as alleged fraud in the inducement at the time of the plan and agreement — would “likely require interpretation of the [settlement agreement and plan].” Id. The claims and remedies could also “affect the implementation and execution” of the as-yet-unconsummated plan itself. Id. In contrast, the close nexus test was not satisfied in Sea Hawk Seafoods, Inc. v. Alaska (In re Valdez Fisheries Development Association, Inc.), 439 F.3d 545, 548 (9th Cir.2006). The bankruptcy court there had reopened a dismissed chapter 11 case — in which no plan had ever been confirmed — to determine whether a settlement agreement between a creditor (a seafood processing plant) and former debt- or (a fisheries development association) also protected the State of Alaska from the creditor"
},
{
"docid": "1793333",
"title": "",
"text": "original). This has become known and accepted as the Pacor test for related to jurisdiction. In Pacor itself, the original complaint was by a nondebtor plaintiff against a nondebtor defendant for asbestos exposure, and the defendant asserted a third party complaint against Johns-Manville, which subsequently filed bankruptcy. The nondebtor defendant/third party plaintiff then removed the entire case to Manville’s bankruptcy court. The Third Circuit affirmed the district court’s remand of the original complaint to state court, noting that “the mere fact that there may be common issues of fact between a civil proceeding and a controversy involving the bankruptcy estate does not bring the matter within the scope of section 1471(b),” the predecessor to § 1334(b). 743 F.2d at 994. “Judicial economy itself does not justify federal jurisdiction.” Id. The Ninth Circuit adopted the Pacor test in Fietz v. Great W. Sav. (In re Fietz), 852 F.2d 455 (9th Cir.1988). In Fietz, the debtor’s claim and the debtor’s wife’s cross claim against Great Western Savings arose prepetition, but were not asserted until postpetition after the debtor’s chapter 13 plan had been confirmed and the debtor’s divorce was final. The Ninth Circuit adopted Pacor and held that jurisdiction was lacking over the ex-wife’s cross claim because “its outcome could not have had any conceivable effect on the administration of the bankruptcy estate.” Id. at 458. In fact, however, the Ninth Circuit has not always applied the Pacor/Fietz test to determine bankruptcy court jurisdiction. In Cowen v. Kennedy (In re Kennedy), 108 F.3d 1015, 1017-18 (9th Cir.1997), the Ninth Circuit held that a bankruptcy court has jurisdiction to enter a money judgment against the debtor on a debt that the court has found to be nondis-chargeable. A nondischargeable money judgment against a debtor can have no conceivable effect on the estate, but rather only affects the debtor’s continuing liability after the estate is entirely administered. Consequently jurisdiction should be lacking under Pacor and Fietz. Yet the Ninth Circuit found such jurisdiction “not merely because equitable jurisdiction attaches to the entire cause of action [presumably referring to the complaint to determine nondischargeability] but"
},
{
"docid": "18984208",
"title": "",
"text": "to determine liability between the creditor and the state “could not conceivably alter the debtor’s rights, liabilities, options, or freedom of action or in any way impact upon the handling and administration of the bankrupt estate.” Id. at 547-48 (internal quotation marks and alterations omitted). We distinguished In re Pegasus Gold Corp., explaining that there we had “found the requisite close nexus to exist where the post-confirmation claims asserted that the defendant breached the Reorganization Plan and where the outcome of those claims could affect the implementation and execution of the Plan.” Id. at 548. Instead, we reasoned, the bankruptcy court in In re Valdez Fisheries had no role in the resolution of the dispute and was “involved only fortuitously because the dispute implicate[d] the terms of a settlement agreement approved by the court as a precondition of the dismissal of [the] bankruptcy.” Id. That statement of our rationale could be substituted here verbatim if we replaced “settlement agreement” with “sale order.” BG Plaza is similarly situated to the seafood processor in In re Valdez Fisheries — • pleading a potentially fraudulent conveyance in state court — and Maldonado is situated similarly to the state of Alaska — as a recipient of property from the bankruptcy estate in a case the bankruptcy court has dismissed and in which it has entered a final decree. There is no doubt that BG Plaza’s claims would undermine the effect of the bankruptcy court’s well-reasoned determination that Sellers did not violate the right of first refusal. However, such attacks in a second court are routine — and routinely rejected, and Jessen offers no convincing argument why that fact alone creates jurisdiction under § 1334(b). See Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4405 (2d ed. 1988) (“Ordinarily both issue preclusion and claim preclusion are enforced by awaiting a second action in which they are pleaded and proved by the party asserting them,” and “[t]he first court does not get to dictate to other courts the preclusion consequences of its own judgment.”). Therefore, the bankruptcy court did not retain"
},
{
"docid": "18984215",
"title": "",
"text": "otherwise stated. . In re McCowan's statement that, \"[i]t is not relevant to the analysis whether the underlying bankruptcy case has been closed,” may be helpful to lessen, but such a rule is a necessary, not a sufficient, condition of jurisdiction here. 296 B.R. at 4. . lessen also discusses two additional cases. First, he cites State of Montana v. Goldin (In re Pegasus Gold Corp.), 394 F.3d 1189 (9th Cir.2005), which we consider below. Second, he cites the discussion in Fietz v. Great Western Savings (In re Fietz), 852 F.2d 455, 456 (9th Cir. 1988), of pre-confirmation matters, but our reasoning in In re Fietz is necessarily less on point than In re Pegasus Gold Corp., which is a more recent case and determined the \"close nexus” test should apply when the bankruptcy estate is post-confirmation. See In re Pegasus Gold Corp., 394 F.3d at 1194. . The situation here may not be identical because in addition to the third party defendants (here Maldonado and Jessen), the debtor (Ray) was named in the state court complaint; however, the core insights that the bankruptcy proceeding is over, that a ruling on the state court claim by the state court would not affect the bankruptcy estate, and that the state court claim should look to the preclusive effect of that proceeding, remain the same. See 439 F.3d at 548. Further, it is not perfectly clear from In re Valdez Fisheries that the debtor was not also a defendant in the subsequent state court suit, id. at 546-47, so the case may not even be distinguishable on that ground. . Nor does the bankruptcy court’s express retention of jurisdiction, alone, bring this case within its ancillary jurisdiction. Jessen highlights language from the order confirming the Plan, stating the bankruptcy court \"shall retain jurisdiction of this case to determine any controversies in connection with assets of the bankruptcy estate.” But Jessen fails to cite a single case suggesting this language can support jurisdiction, which is constitutionally limited, see N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858,"
},
{
"docid": "17593554",
"title": "",
"text": "not have arisen had there not been a bankruptcy case does not ipso facto mean that the proceeding qualifies as an ‘arising in’ proceeding.” 1-3 Collier on Bankruptcy ¶ 3.01[3][e][iv] (Myron M. Sheinfeld, Fred T. Witt & Milton B. Hyman, 16th ed. Dec.2011). Had Wilshire negotiated a similar deal with its creditors outside of bankruptcy, the same dispute with CFTB over whether to categorize the income as cancellation of debt income or capital gains may have arisen. 2. “Related to” jurisdiction We disagree with the BAP’s holding that the bankruptcy court did not have “related to” jurisdiction over the present dispute. “A bankruptcy court’s ‘related to’ jurisdiction is very broad, including nearly every matter directly or indirectly related to the bankruptcy.” Sasson v. Sokoloff (In re Sasson), 424 F.3d 864, 868 (9th Cir.2005) (internal quotation marks omitted). The test for post-confirmation “related to” jurisdiction was modified from the seminal pre-confirmation Pacor test for “related to” jurisdiction, which had been previously adopted by the Ninth Circuit in Fietz v. Great W. Savings (In re Fietz), 852 F.2d 455, 457 (9th Cir.1988) (citing Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984)). Surveying the courts that had applied a limited version of the Pacor test in the post-confirmation context, we recognized that the Pacor test of whether “ ‘the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy.... [I]f the outcome could alter the debtor’s rights, liabilities, options, or freedom of action ... and which in any way impacts upon the handling and administration of the bankrupt estate’ ” was “somewhat overbroad in the post-confirmation context.” Pegasus Gold Corp., 394 F.3d at 1193, 1194 (quoting In re Fietz, 852 F.2d at 457). The “close nexus” test determines the scope of bankruptcy court’s post-confirmation “related to” jurisdiction. Pegasus Gold Corp., 394 F.3d at 1194. As adopted from the Third Circuit, the test encompasses matters “affecting the ‘interpretation, implementation, consummation, execution, or administration of the confirmed plan.’ ” Id. (quoting Binder v. Price Waterhouse & Co. (In re Resorts Int'l, Inc.), 372 F.3d 154, 166-67 (3d"
},
{
"docid": "4495009",
"title": "",
"text": "State argues that to preserve the bankruptcy court’s ability to interpret its prior rulings, a different standard applies to postconfirmation proceedings. The Third Circuit, after reviewing the post-confirmation cases, concluded that “the essential inquiry appears to be whether there is a close nexus to the bankruptcy plan or proceeding sufficient to uphold bankruptcy court jurisdiction.” In re Resorts Int’l. Inc., 372 F.3d 154, 166-67 (3d Cir.2004). The court concluded that matters affecting the interpretation, implementation, consummation, .execution, or administration of the confirmed plan will typically have the requisite close nexus. We adopted the close nexus test in In re Pegasus Gold Corp., 394 F.3d 1189, 1194 (9th Cir.2005). There, we found the requisite close nexus to exist where- the post-confirmation claims asserted that the defendant breached the Reorganization Plan and where the outcome of those claims could affect the implementation and execution of the Plan. This is not. a proceeding falling within the rationale of the close nexus test. Here, there was no confirmed plan and there is no claim that the dispute between two creditors, Sea Hawk and the State, would have any effect on the now-closed bankruptcy estate. The bankruptcy court has no role in the resolution of the creditors’ dispute, and it is involved only fortuitously because the dispute implicates the terms of a settlement agreement approved by the court as a precondition of the dismissal of VFDA’s bankruptcy. But that agreement has been fully implemented with respect to VFDA. The bankruptcy court did not consider dismissal of VFDA’s bankruptcy to automatically divest it of jurisdiction over á related case. It reasoned that after dismissal, the court has discretion to retain jurisdiction over a related proceeding, citing In re Carraher, 971 F.2d 327, 328 (9th Cir.1992). Carraher’s fraud case had originally been filed in state court but was then removed to bankruptcy court as a related case because of the pendency of a bankruptcy case. When the underlying bankruptcy case was dismissed, the bankruptcy court decided to retain jurisdiction of the fraud case. This court held that “bankruptcy courts are not automatically divested of jurisdiction over related"
},
{
"docid": "18984213",
"title": "",
"text": "because the attorney failed to disclose required information to the bankruptcy court. Elias v. Lisowski Law Firm, Chtd. (In re Elias), 215 B.R. 600, 603-17 (9th Cir.BAP 1997). In short, hearing a breach of contract claim predicated on evidence that came to light after a bankruptcy case had closed, its creditors paid, and the debtor discharged, stretches the limits of the bankruptcy court’s ancillary jurisdiction too far, going beyond what is necessary for the bankruptcy court to “effectuate its decrees.” Kokkonen, 511 U.S. at 380, 114 S.Ct. 1673. This conclusion is supported by the record, which demonstrates the bankruptcy judge’s reluctance to accept jurisdiction and his recognition that particularly the inclusion of Jessen and Maldonado seemed to raise issues beyond the Debtor’s bankruptcy case. “[Ojnce the bankruptcy court confirms a plan of reorganization, the debtor is free to go about its business without further supervision or approval of the court, and concomitantly, without further protection of the court.” Sw. Marine, Inc. v. Danzig, 217 F.3d 1128, 1140 (9th Cir. 2000) (internal citations omitted). Reopening of the bankruptcy case is rare, and only used when necessary to resolve bankruptcy issues, not to adjudicate state law claims that can be adjudicated in state court. IV. CONCLUSION For the foregoing reasons the bankruptcy court lacked jurisdiction over the state law breach of contract claims, and the case must be dismissed. The Clark County Court was perfectly capable of taking jurisdiction and assessing whether BG Plaza’s claim is precluded given that the sale had already been finalized and approved in the previous bankruptcy proceeding. REVERSED and REMANDED for further proceedings consistent with this Opinion. . The agreement was actually with BG Plaza's predecessor in interest, Bruce Feldman, Inc., an immaterial fact on appeal. . BG Plaza received notice of the hearing and filed an objection to the approval of the sale to Maldonado. . Since Jessen’s estate notes that it continues to refer to itself as “Jessen” in its briefs “for convenience,” we do the same. . All statutory provisions cited in this Opinion refer to Title 28 of the United States Code, unless"
},
{
"docid": "19326858",
"title": "",
"text": "Wilshire’s bankruptcy case. The bankruptcy court explained its view of its related to jurisdiction in this case as follows: [Tjhough a bankruptcy court has more limited subject matter jurisdiction post-confirmation than pre-confirmation, it retains post-confirmation subject matter jurisdiction over matters with a “close nexus” to the bankruptcy case [citing In re Pegasus Gold Corp., 394 F.3d at 1193-94], Matters involving “the interpretation, implementation, consummation, execution or administration of the confirmed plan will typically have the requisite close nexus.” Id. at 1194. In this case, the determination whether [C]FTB’s actions violate the confirmation order involves an interpretation of the confirmed plan, and confers continu ing subject matter jurisdiction on the court after plan confirmation. In re Wilshire Courtyard, 437 B.R. at 384. The bankruptcy court’s reasoning that the parties’ request that it “interpret” the plan and confirmation order establishes the “close nexus” to the bankruptcy case so as to confer related to subject matter jurisdiction is, in our view, flawed. More precisely, as the case law discussed below shows, in order to find the requisite close bankruptcy nexus and establish post-confirmation jurisdiction in a chapter 11 case, the outcome of the issues before the bankruptcy court must potentially impact the debtor, the estate, or the implementation of the plan of reorganization. Here, the outcome of the Wilshire Partners’ tax dispute with CFTB will have no impact whatsoever on the debtor, the estate, or the implementation of the Wilshire plan of reorganization. As the bankruptcy court acknowledged, in recent years various courts of appeal have articulated the limits on bankruptcy court related to jurisdiction over matters arising after confirmation of a debtor’s reorganization plan. See, e.g., Binder v. Price Waterhouse & Co. (In re Resorts Int’l, Inc.), 372 F.3d 154, 166-67 (3d Cir.2004) (“the essential inquiry appears to be whether there is a close nexus to the bankruptcy plan or proceeding sufficient to uphold bankruptcy court jurisdiction over the matter”); Bank of La. v. Craig’s Stores of Tex., Inc. (In re Craig’s Stores of Tex., Inc.), 266 F.3d 388, 390-91 (5th Cir.2001) (post-confirmation bankruptcy jurisdiction limited to matters pertaining to implementation or"
},
{
"docid": "19326866",
"title": "",
"text": "on the facts of that case, the claims asserted in the adversary proceeding failed the close nexus test, and therefore, the bankruptcy court lacked subject matter jurisdiction to entertain the creditor’s suit. The court noted there was no confirmed plan, and there was no assertion that the outcome of the dispute between two creditors, Sea Hawk and the State of Alaska, would have any effect on the estate in the closed bankruptcy case. In the court’s view, to show a close nexus, the outcome of a dispute must “alter the debtor’s rights, liabilities, options, or freedom of action or in any way impact upon the handling and administration of the bankrupt estate.” Id. at 548 (quoting In re Fietz, 852 F.2d at 457). In Valdez Fisheries, the court distinguished its holding from that in Pegasus Gold, observing that the post-confirmation claims asserted by debtor that the State of Montana had breached the terms of a confirmed reorganization plan and “the outcome of those claims could affect the implementation and execution of the plan.” Id. at 548. The Ninth Circuit most recently visited related to jurisdiction after confirmation in a chapter 11 case in In re Ray, 624 F.3d 1124. In Ray, the bankruptcy court had approved the sale of a parcel of property owned by the debtor and his nondebtor co-owner, free and clear of the first refusal rights previously granted by them to Battle Ground Plaza, LLC (“BG Plaza”). After the debtor’s plan was confirmed and the bankruptcy case was closed, BG Plaza sued the reorganized debtor, the nondebt- or co-owner, the purchaser, and the purchaser’s successor in state court for breach of its contractual right of first refusal. Because the sale was originally authorized under a bankruptcy court order, the state court, in its words, “remanded” the action to the bankruptcy court, and stayed proceedings in state court pending the bankruptcy court’s determination whether it retained jurisdiction over the transaction and dispute. In re Ray, 624 F.3d at 1129. The bankruptcy court assumed jurisdiction and proceeded to construe the sale order and resolve the parties’ claims. When the"
},
{
"docid": "19326887",
"title": "",
"text": "e.g., Fietz v. Great W. Sav. (In re Fietz), 852 F.2d 455, 457 (9th Cir.1988) (“We ... adopt the Pacor definition [of related to jurisdiction].... We reject any limitation on this definition[.]”). Although Pacor is somewhat dated, it is still the \"grandfather” of related to analysis, and its caution that related to jurisdiction requires an effect on the bankruptcy estate [or, as its progeny interpreted Pacor for postconfirmation purposes, the debtor or the plan] is instructive for our purposes. . The bankruptcy court cited to Pegasus Gold for this statement. Pegasus Gold in turn cited to Resorts Int'l. . 28 U.S.C. § 1367 provides: Supplemental jurisdiction. (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties."
},
{
"docid": "19326865",
"title": "",
"text": "held that the bankruptcy court could also properly adjudicate the remaining trustee claims against the State by exercising supplemental jurisdiction under 28 U.S.C. § 1367, because those additional claims arose from a “ ‘common nucleus of operative facts’ and would ordinarily be expected to be resolved in one judicial proceeding.” Id. at 1195, citing United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) and Sec. Farms v. Int’l Bhd. Of Teamsters, 124 F.3d 999, 1008 (9th Cir.1997). The Ninth Circuit further explained the meaning of the close nexus test it first articulated in Pegasus Gold in Sea Hawk Seafoods, Inc. v. State of Alaska (In re Valdez Fisheries Dev. Ass’n, Inc.), 439 F.3d 545 (9th Cir.2006). In Valdez Fisheries, a creditor of a former chapter 11 debt- or commenced an adversary proceeding in the bankruptcy court in connection with a closed bankruptcy case to determine the effect of its settlement agreement with the debtor on its fraudulent conveyance claim against another creditor. On appeal, the court held that, on the facts of that case, the claims asserted in the adversary proceeding failed the close nexus test, and therefore, the bankruptcy court lacked subject matter jurisdiction to entertain the creditor’s suit. The court noted there was no confirmed plan, and there was no assertion that the outcome of the dispute between two creditors, Sea Hawk and the State of Alaska, would have any effect on the estate in the closed bankruptcy case. In the court’s view, to show a close nexus, the outcome of a dispute must “alter the debtor’s rights, liabilities, options, or freedom of action or in any way impact upon the handling and administration of the bankrupt estate.” Id. at 548 (quoting In re Fietz, 852 F.2d at 457). In Valdez Fisheries, the court distinguished its holding from that in Pegasus Gold, observing that the post-confirmation claims asserted by debtor that the State of Montana had breached the terms of a confirmed reorganization plan and “the outcome of those claims could affect the implementation and execution of the plan.” Id. at"
},
{
"docid": "22230676",
"title": "",
"text": "Prods., Inc.), 151 B.R. 530, 534-37 (Bankr.E.D.Cal.1993). Writs of execution on money judgments may similarly be obtained post-closing. Fed.R.Bankr.P. 5010, advisory committee note. These examples confirm our interpretation of § 1334(b): there is no jurisdictional requirement that a closed bankruptcy case be reopened before “arising under” jurisdiction can be exercised to determine whether a particular debt is excepted from discharge. Such a proceeding is purely a two-party dispute having- na impact on the bankruptcy estate or on other creditors and requiring no trustee. 3 In contrast, the analysis of § 1334(b) “arising in” or “related to” jurisdiction potentially differs because the pertinent portion of the statutory sentence does refer to bankruptcy cases: “district courts shall have original but not exclusive jurisdiction of all civil proceedings ... arising in or related to cases under title 11.” 28 U.S.C. § 1334(b) (emphasis added). This reference to “cases under title 11,” coupled with the nature of the disputes included, arguably indicates that the existence of an actual case is important, especially with respect to § 1334(b) “related to” jurisdiction, the governing test for which looks to the rights of the trustee in the ongoing administration of the bankruptcy estate. Celotex Corp. v. Edwards, 514 U.S. 300, 308-09 n. 6, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995); Fietz v. Great W. Sav. (In re Fietz), 852 F.2d 455, 457 (9th Cir.1988), following Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984). Once the administration of the bankruptcy case has ended, the relation to the case becomes so attenuated that § 1334(b) “related to” jurisdiction presumptively expires unless the court specifically retains jurisdiction. To that end, it is agreed that the bankruptcy court has discretion to retain jurisdiction over matters within its § 1334(b) “related to” jurisdiction after dismissal, subject to the same considerations — economy, convenience, fairness, and comity' — that the district courts apply when deciding whether to retain a supplemental state claim after federal claims have been dismissed. Carraher v. Morgan Elec., Inc. (In re Carraher), 971 F.2d 327, 328 (9th Cir.1992); Chapman v. Currie Motors, Inc., 65 F.3d 78, 81"
},
{
"docid": "17593558",
"title": "",
"text": "confirmed plan in Valdez Fisheries, we reached the same conclusion separately under both the pre-confirmation Fietz/Pa-cor test and the post-confirmation Pegasus Gold “close nexus” test. In interpreting Valdez Fisheries, the BAP improperly conflated the two tests. The BAP reasoned that “to show a close nexus, the outcome of a dispute must ‘alter the debtor’s rights, liabilities, options, or freedom of action or in any way impact upon the handling and administration of the bankrupt estate.’ ” In re Wilshire Courtyard, 459 B.R. at 429 (quoting In re Fietz, 852 F.2d at 457). The BAP’s reasoning makes the pre-confirmation Fietz/Pacor test of whether a separate civil proceeding could “alter the debtor’s rights, liabilities, options or freedom of action ... [or] in any way impact[ ] upon the handling and administration of the bankruptcy estate,” part and parcel of the post-confirmation Pegasus Gold post-confirmation “close nexus” test. The two are distinct. The BAP recognized why when it stated, “[t]he Pacor test, however, proved less than useful in determining related to jurisdiction after confirmation of a plan because the bankruptcy estate no longer exists.” Id. at 427 (emphasis added). Similarly, we do not read Ray, 624 F.3d at 1134, to have “refined” the Pegasus Gold “close nexus” test to incorporate the Fietz/Pacor test. In re Wilshire Courtyard, 459 B.R. at 430. The lack of jurisdiction in Ray was premised on the fact that the dispute there was a matter of pure state law that “did not necessarily depend upon resolution of a substantial question of bankruptcy law” and which could have existed “entirely apart from the bankruptcy proceeding.” 624 F.3d at 1135. The breach of contract claim that the state court in Ray referred to the bankruptcy court had a relationship to the bankruptcy proceeding only because the bankruptcy court had approved a settlement agreement that sold property free and clear of the right of first refusal. The dispute in Ray, unlike that in Pegasus Gold, did not involve “implementation and execution of [the bankruptcy plan].” Id. at 1134 (quoting In re Valdez Fisheries, 439 F.3d at 548). The BAP “distill[ed]” too narrow"
},
{
"docid": "18984206",
"title": "",
"text": "set of “arising under” cases. In re Pegasus Gold Corp., 394 F.3d at 1193, 1194. In considering whether a bankruptcy court has jurisdiction over a state contract action related to a post-confirmation liquidation plan, we have adopted the “close nexus” test, explaining that “the essential inquiry appears to be whether there is a close nexus to the bankruptcy plan or proceeding sufficient to uphold bankruptcy court jurisdiction over the matter.” Id. at 1194. In attempting to demonstrate how the state court action is “related to” the bankruptcy proceeding, Jessen claims that “altering the rights in the property so long after the disposition of the property could set off a chain reaction that would include the estate, the buyers, title companies, insurance companies, and other far reaching parties.” We disagree and find the state court action lacking a close nexus to the bankruptcy plan or proceeding. Our decision in In re Valdez Fisheries, 439 F.3d at 545, is instructive. There, we found the bankruptcy court lacked “related to” jurisdiction to interpret a settlement agreement between two creditors in a suit brought after the closing and dismissal of the underlying bankruptcy case. Id. at 546-47. The debtor there claimed that creditor seafood processing plant had fraudulently conveyed funds to repay a state loan rather than paying its prioritized creditors. Id. The debtor and creditor subsequently entered into a settlement agreement requiring dismissal of all claims between them and stating the bankruptcy court would continue to have jurisdiction over the settlement. Id. at 547. Shortly after the termination of the bankruptcy proceedings, the creditor sued the State of Alaska in state court, claiming its Division of Investments was the recipient of the fraudulent conveyance from the debtor, which repaid over $2 million in State loans before paying the seafood processor. Id. Like here, the state court directed the parties to seek a determination on the scope of the settlement agreement in the bankruptcy court, which in turn found it had jurisdiction over the proceeding as one related to bankruptcy. Id. The district court affirmed, but we reversed, finding that reopening the bankruptcy case"
},
{
"docid": "19326886",
"title": "",
"text": "visions of title 11 to restructure debtor-creditor relations, to modify rights of third parties, or to transfer bankruptcy estate property, the bankruptcy court lacks jurisdiction to interpret and enforce those plan provisions on those who are bound by its terms, and to prevent a collateral attack or serial litigation concerning the confirmation order. But this is not such a case, as it is undisputed that the disclosure statement and chapter 11 plan filed by Wilshire, served on its creditors, and eventually confirmed by the bankruptcy court simply makes no mention of the ''sale/no-sale” attributes of the property transfers, or of the state tax consequences to the Wilshire Partners of confirmation of that plan. Such an \"after the fact” declaration by the bankruptcy court giving CFTB no inkling of what was intended is not an adequate basis for the bankruptcy court’s decision to assume jurisdiction. . Pacor is among the most influential decisions in bankruptcy law, and forms the analytical framework for related to jurisdiction in the Third, Fourth, Fifth, Eighth, Ninth and Eleventh Circuits. See, e.g., Fietz v. Great W. Sav. (In re Fietz), 852 F.2d 455, 457 (9th Cir.1988) (“We ... adopt the Pacor definition [of related to jurisdiction].... We reject any limitation on this definition[.]”). Although Pacor is somewhat dated, it is still the \"grandfather” of related to analysis, and its caution that related to jurisdiction requires an effect on the bankruptcy estate [or, as its progeny interpreted Pacor for postconfirmation purposes, the debtor or the plan] is instructive for our purposes. . The bankruptcy court cited to Pegasus Gold for this statement. Pegasus Gold in turn cited to Resorts Int'l. . 28 U.S.C. § 1367 provides: Supplemental jurisdiction. (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United"
},
{
"docid": "18984214",
"title": "",
"text": "the bankruptcy case is rare, and only used when necessary to resolve bankruptcy issues, not to adjudicate state law claims that can be adjudicated in state court. IV. CONCLUSION For the foregoing reasons the bankruptcy court lacked jurisdiction over the state law breach of contract claims, and the case must be dismissed. The Clark County Court was perfectly capable of taking jurisdiction and assessing whether BG Plaza’s claim is precluded given that the sale had already been finalized and approved in the previous bankruptcy proceeding. REVERSED and REMANDED for further proceedings consistent with this Opinion. . The agreement was actually with BG Plaza's predecessor in interest, Bruce Feldman, Inc., an immaterial fact on appeal. . BG Plaza received notice of the hearing and filed an objection to the approval of the sale to Maldonado. . Since Jessen’s estate notes that it continues to refer to itself as “Jessen” in its briefs “for convenience,” we do the same. . All statutory provisions cited in this Opinion refer to Title 28 of the United States Code, unless otherwise stated. . In re McCowan's statement that, \"[i]t is not relevant to the analysis whether the underlying bankruptcy case has been closed,” may be helpful to lessen, but such a rule is a necessary, not a sufficient, condition of jurisdiction here. 296 B.R. at 4. . lessen also discusses two additional cases. First, he cites State of Montana v. Goldin (In re Pegasus Gold Corp.), 394 F.3d 1189 (9th Cir.2005), which we consider below. Second, he cites the discussion in Fietz v. Great Western Savings (In re Fietz), 852 F.2d 455, 456 (9th Cir. 1988), of pre-confirmation matters, but our reasoning in In re Fietz is necessarily less on point than In re Pegasus Gold Corp., which is a more recent case and determined the \"close nexus” test should apply when the bankruptcy estate is post-confirmation. See In re Pegasus Gold Corp., 394 F.3d at 1194. . The situation here may not be identical because in addition to the third party defendants (here Maldonado and Jessen), the debtor (Ray) was named in the state"
},
{
"docid": "17593559",
"title": "",
"text": "the bankruptcy estate no longer exists.” Id. at 427 (emphasis added). Similarly, we do not read Ray, 624 F.3d at 1134, to have “refined” the Pegasus Gold “close nexus” test to incorporate the Fietz/Pacor test. In re Wilshire Courtyard, 459 B.R. at 430. The lack of jurisdiction in Ray was premised on the fact that the dispute there was a matter of pure state law that “did not necessarily depend upon resolution of a substantial question of bankruptcy law” and which could have existed “entirely apart from the bankruptcy proceeding.” 624 F.3d at 1135. The breach of contract claim that the state court in Ray referred to the bankruptcy court had a relationship to the bankruptcy proceeding only because the bankruptcy court had approved a settlement agreement that sold property free and clear of the right of first refusal. The dispute in Ray, unlike that in Pegasus Gold, did not involve “implementation and execution of [the bankruptcy plan].” Id. at 1134 (quoting In re Valdez Fisheries, 439 F.3d at 548). The BAP “distill[ed]” too narrow a version of the “close nexus” test from Valdez Fisheries and Ray: “[T]o support jurisdiction, there must be a close nexus connect ing a proposed post-confirmation proceeding in the bankruptcy court with some demonstrable effect on the debtor or the plan of reorganization.” In re Wilshire Courtyard, 459 B.R. at 430 (emphasis added). Valdez Fisheries and Ray simply applied the Pegasus Gold “close nexus” test to the unique — and distinguishable— facts of those cases. We reaffirm that a close nexus exists between a post-confirmation matter and a closed bankruptcy proceeding sufficient to support jurisdiction when the matter “affect[s] the interpretation, implementation, consummation, execution, or administration of the confirmed plan.” Pegasus Gold Corp., 394 F.3d at 1194 (internal citation and quotation marks omitted). The Pegasus Gold “close nexus” test requires particularized consideration of the facts and posture of each case, as the test contemplates a broad set of sufficient conditions and “retains a certain flexibility.” Id. Such a test can only be properly applied by looking at the whole picture. First, the ultimate merits question"
},
{
"docid": "18984205",
"title": "",
"text": "involve a piece of property a third party was trying to purchase from the Debtor and his non-bankruptcy partner, and the state court action is a breach of contract action claiming the Sellers did not honor the terms of the right of first refusal, which itself was created under Washington law rather than as part of the bankruptcy proceeding. Thus, following our reasoning in In re Harris, an action for breach of the right of first refusal can exist independently of the bankruptcy case, and does not arise under Title 11. See 590 F.3d at 737-38. %. “Related to” Jurisdiction Of course, even if the state court action did not arise under the bankruptcy code, it could still be “related to” a bankruptcy case such that the bankruptcy court retains jurisdiction to provide findings of fact and conclusions of law to the district court. See 28 U.S.C. § 157(c)(1). Although “post-confirmation bankruptcy court jurisdiction is necessarily more limited than pre-confirmation jurisdiction,” the set of cases “related to” a bankruptcy case is “much broader” than the set of “arising under” cases. In re Pegasus Gold Corp., 394 F.3d at 1193, 1194. In considering whether a bankruptcy court has jurisdiction over a state contract action related to a post-confirmation liquidation plan, we have adopted the “close nexus” test, explaining that “the essential inquiry appears to be whether there is a close nexus to the bankruptcy plan or proceeding sufficient to uphold bankruptcy court jurisdiction over the matter.” Id. at 1194. In attempting to demonstrate how the state court action is “related to” the bankruptcy proceeding, Jessen claims that “altering the rights in the property so long after the disposition of the property could set off a chain reaction that would include the estate, the buyers, title companies, insurance companies, and other far reaching parties.” We disagree and find the state court action lacking a close nexus to the bankruptcy plan or proceeding. Our decision in In re Valdez Fisheries, 439 F.3d at 545, is instructive. There, we found the bankruptcy court lacked “related to” jurisdiction to interpret a settlement agreement between two"
}
] |
694836 | rent payments and “left the property in a condition that not only made it uninhabitable but also violated [a] provision of the lease” (Doc. No. 41, at 13), he maintained no objectively reasonable expectation of privacy. The Court disagrees. It is settled that an individual does not retain a reasonable expectation of privacy in items that are abandoned. California v. Hodari D., 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (upholding warrantless seizure of narcotics that defendant threw away while fleeing from police); Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) (upholding warrantless seizure of items thrown away in hotel trash can where individual had checked out of the hotel); REDACTED However, as the Third Circuit has held, “[ajbandonment for purposes of the Fourth Amendment differs from abandonment in property law; here the analysis examines the individual’s reasonable expectation of privacy, not his property interest in the item.” Fulani, 368 F.3d at 354. In order to find that an individual has abandoned his property, the court must “determine from an objective viewpoint whether property has been abandoned,” and the court must find, by “clear and unequivocal evidence” that the individual intended to abandon the property. Id. (citing United States v. Moody, 485 F.2d 531, 534 (3d Cir.1973)); see also United States v. Sinkler, 91 | [
{
"docid": "16234993",
"title": "",
"text": "A. The Fourth Amendment The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Police officers’ requests to search passengers on a bus do not violate the Fourth Amendment so long as “a reasonable person would have felt free to decline the officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991) (finding error in Florida Supreme Court’s per se ruling that every encounter on a bus in which consent from passengers to search their luggage is sought is a seizure). Moreover, police officers conducting a routine, suspicionless drug interdiction need not inform bus passengers that they have the right to refuse consent to searches. See United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105, 2114, 153 L.Ed.2d 242 (2002). B. Abandonment Although a person has a privacy-interest in the contents of his personal luggage, see United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983), he forfeits that interest when he abandons his property. See Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960) (an individual has no reasonable expectation of privacy in abandoned property). Abandonment for purposes of the Fourth Amendment differs from abandonment in property law; here the analysis examines the individual’s reasonable expectation of privacy, not his property interest in the item. See United States v. Lewis, 921 F.2d 1294, 1302 (D.C.Cir.1990). A court must determine from an objective viewpoint whether property has been abandoned. See United States v. Perkins, 871 F.Supp. 801, 803 (M.D.Pa.1995), aff'd, 91 F.3d 127 (3d Cir.1996) (table); see also United States v. Rem, 984 F.2d 806, 810 (7th Cir.1993). Proof of intent to abandon property must be established by clear and unequivocal evidence. See United States v. Moody, 485 F.2d 531, 534 (3d Cir.1973). C. Fulani Abandoned His Overhead Bag Following the Supreme Court’s rulings in Bostick and Drayton, police officers may request to search bus passengers, even without notifying"
}
] | [
{
"docid": "16631932",
"title": "",
"text": "Court declared that the government's warrantless seizure of abandoned property did not violate the Fourth Amendment. Id. at 241, 80 S.Ct. at 698. Since Abel, the circuit courts have examined the issue, and the following guidelines to the abandoned property exception to the Fourth Amendment's warrant requirement have emerged. When individuals voluntarily abandon property, they forfeit any expectation of privacy in it they might have had. United States v. Berd, 634 F.2d 979, 987 (5th Cir.1981). Therefore, a warrantless search or seizure of abandoned property is not unreasonable under the Fourth Amendment. E.g., United States v. Diggs, 649 F.2d 731, 735 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981); Berd, 634 F.2d at 987; United States v. D'Avanzo, 443 F.2d 1224, 1225-26 (2d Cir.), cert. denied, 404 U.S. 850, 92 S.Ct. 86, 30 L.Ed.2d 89 (1971). The existence of police pursuit or investigation at the time of abandonment does not of itself render the abandonment involuntary. United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973); see generally, e.g., Berd, 634 F.2d at 987; United States v. Canady, 615 F.2d 694 (5th Cir.), cert. denied, 449 U.S. 862, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); United States v. Williams, 569 F.2d 823 (5th Cir.1978); D'Avanzo, 443 F.2d 1224. The test for abandonment is whether an individual has retained any reasonable expectation of privacy in the object. Diggs, 649 F.2d at 735. This determination is to be made by the objective standards. United States v. Kendall, 655 F.2d 199, 201 (9th Cir.1981), cert. denied, 455 U.S. 941, 102 S.Ct. 1434, 71 L.Ed.2d 652 (1982). An expectation of privacy is a question of intent, which may be inferred from words spoken, acts done, and other objective facts. Kendall, 655 F.2d at 202 (quoting Williams, 569 F.2d at 826). A finding of abandonment is reviewed under the clearly erroneous standard, Diggs, 649 F.2d at 735, and the surrounding circumstances must be examined. United States v. Morgan, 936 F.2d 1561, 1570 (10th Cir.1991). We hold that the district court’s finding that Trimble had, in light of all the"
},
{
"docid": "22990005",
"title": "",
"text": "pursuant to a subpoena duces tecum issued to the owner of a motel. The motel was Diggs’ residence during the period when the acts forming the basis of the indictment were alleged to have occurred. The court denied the motion, finding the evidence seized to have been abandoned property. A warrantless search or seizure of abandoned property is not unreasonable under the Fourth Amendment. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960); United States v. Kress, 446 F.2d 358, 361 (9th Cir. 1971). The test of abandonment is whether the alleged owner has retained a reasonable expectation of privacy in the articles alleged to have been abandoned. United States v. Haddad, 558 F.2d 968, 975, n.6 (9th Cir. 1977); United States v. Wilson, 472 F.2d 901, 903 (9th Cir.), cert. denied, 414 U.S. 868, 94 S.Ct. 176, 38 L.Ed.2d 116 (1973). A finding of abandonment is reviewed under the clearly erroneous standard. United States v. Humphrey, 549 F.2d 650, 652 (9th Cir. 1977). Diggs argues that the finding of abandonment was erroneous. He relies for this conclusion on United States v. Botelho, 360 F.Supp. 620 (D.Haw.1973). In that case, the court held that tenants who had not been given a notice to vacate leased premises, as required by Hawaii law, retained a reasonable expectation of privacy in those premises even though they had not paid their rent. Id. at 626. Because he was never given a formal notice of eviction by the motel, Diggs argues that he cannot be found to have abandoned the property that he left there. We do not view Boteiho as persuasive authority. The test in this circuit for determining whether property is abandoned is not “whether all formal property rights have been relinquished, but whether the complaining party retains a reasonable expectation of privacy in the articles alleged to be abandoned.” United States v. Wilson, supra, 472 F.2d at 902. Here there is ample evidence that Diggs had no such expectancy. Diggs left his room at the motel owing $1,000 in back rent, and was not seen"
},
{
"docid": "426714",
"title": "",
"text": "to consent to their search. While we agree that, absent extraordinary circumstances, a landlord may not give an effective consent for the search of his tenant’s property, Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), it is equally true that, “[tjhere can be nothing unlawful in the Government’s appropriation of ... abandoned property.” Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960). Further, appellant misconstrues the nature of the inquiry under the Fourth Amendment if he assumes that property rights conferred by State landlord and tenant law are exclusively determinative of constitutional rights. In Chapman the Supreme Court declined to “.. . import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law. .. . ” 365 U.S. at 617, 81 S.Ct. at 780. Thus, “[t]he proper test for abandonment is not whether all formal property rights have been relinquished, but whether the complaining party retains a reasonable expectation of privacy in the articles alleged to be abandoned.” United States v. Wilson, 472 F.2d 901, 903 (9th Cir. 1973). In Wilson, a tenant had departed from his apartment and failed to make two weekly payments of his rent at the time of a warrantless search. In spite of the fact that the defendant had left some clothing and a television set on the premises, the court held that any reasonable expectation of privacy in the apartment was terminated and that a warrantless search conducted with the consent of the landlord was valid. The present case presents a similar situation. Here, the lease expired nearly two months before the search. Haynie had not been seen at the premises for six weeks, and testimony indicates that the house contained no clothing or food and was without telephone service for a like period. Furthermore, Haynie did not protest the removal of his personalty from the property during his December meeting with Dr. Wright as might reasonably be expected"
},
{
"docid": "1298371",
"title": "",
"text": "the car, the Fourth Amendment allows for warrantless search and seizure of abandoned property. United States v. Hernandez, 7 F.3d 944, 947 (10th Cir.1993). The test for abandonment is whether the defendant retained a reasonable expectation of privacy in the property. Id. If, for example, the defendant continues to try to protect the property from the police, it has not been abandoned. Smith v. Ohio, 494 U.S. 541, 543-44, 110 S.Ct. 1288, 108 L.Ed.2d 464 (1990) (holding bag thrown on hood of car not abandoned when police had to remove defendant’s hand from bag in order to search it). In order to be effective, abandonment must be voluntary. It is considered involuntary if it results from a violation of the Fourth Amendment. Hernandez, 7 F.3d at 947. “[P]olice pursuit or investigation at the time of abandonment does not of itself render the abandonment involuntary.” United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.1983); see also California v. Hodari, 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); United States v. Klinginsmith, 25 F.3d 1507, 1510 (10th Cir.1994). However, property is considered to have been involuntarily abandoned if the defendant discards it as a consequence of illegal police conduct. See, e.g., United States v. Garzon, 119 F.3d 1446, 1451 (10th Cir.1997) (finding property not abandoned when left on bus after police issued unlawful order to remove all possessions from bus). Mr. Flynn maintains he only discarded the property on the ramp “as a result of ... law enforcement’s illegal conduct in operating a narcotics checkpoint.” Aplt. Reply Br. at 7. He relies on City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), for the general proposition that drug checkpoints constitute illegal police conduct and therefore his abandonment of the property must be considered involuntary. This reliance is misplaced. Mr. Flynn never reached a drug checkpoint. He discarded the property prior to being stopped by the police. Up to that moment, he acted voluntarily in response to a ruse established by the police (i.e. the signs warning of a fictitious checkpoint on 1-40)."
},
{
"docid": "21089733",
"title": "",
"text": "it was the prevailing party in the district court. See United States v. McAlpine, 919 F.2d 1461, 1463 (10th Cir.1990). If the district court did not make necessary findings, we nonetheless uphold the court’s denial of a motion to suppress “if there is any reasonable view of the evidence to support it.” United States v. Neu, 879 F.2d 805, 807 (10th Cir.1989). A trial court’s determination of abandonment of property is a factual finding, which we therefore examine for clear error. See United States v. Hernandez, 7 F.3d 944, 947 (10th Cir.1993). In contrast to our review of the district court’s factual findings, “[t]he ultimate question of whether a search is reasonable under the Fourth Amendment is a question of law which we review de novo.” Bute, 43 F.3d at 534. II. “The Fourth Amendment ‘protects people from unreasonable government intrusions into their legitimate expectations of privacy.’ ” United States v. Place, 462 U.S. 696, 706-07, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983) (quoting United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977), overruled in part, California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991)). But “[a] warrantless search and seizure of abandoned property is not unreasonable under the Fourth Amendment.” Hernandez, 7 F.3d at 947; see also Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960). It is not unreasonable because “[wjhen individuals voluntarily abandon property, they forfeit any expectation of privacy in it that they might have had.” United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.), cert. denied, 464 U.S. 859, 104 S.Ct. 184, 78 L.Ed.2d 163 (1983). An abandonment must be voluntary, and an abandonment that results from a Fourth Amendment violation cannot be voluntary. Hernandez, 7 F.3d at 947. Consequently, even if the district court correctly concluded that defendant abandoned the bag at the security office, we must determine whether that abandonment was the result of an earlier Fourth Amendment violation. Thus, the district court should have examined the legality of the search from the"
},
{
"docid": "19710372",
"title": "",
"text": "road. Following discovery of this object and without applying for a warrant, the agent made a quick inspection of the bag and noted that it contained various items of trash. Among the trash and at the very bottom of the bag, the agents discovered a package wrapped in a white plastic trash bag secured with tape. Inside the plastic package was a sealed manila envelope. That envelope contained the documents which defendant now asks this Court to suppress. The question presented is whether this was abandoned property. In Abel v. United States, 362 U.S. 217, 240-41, 80 S.Ct. 683, 697-98, 4 L.Ed.2d 668 (1960), the Supreme Court held that the government’s warrantless search and seizure of abandoned property did not violate the Fourth Amendment. Under this and subsequent cases, one who abandons property may not be heard to complain of its seizure without a warrant. The test for determining whether property is abandoned was most recently discussed by a judge in this Circuit in United States v. Masiello, 491 F.Supp. 1154 (D.S.C.1980). In that case, District Judge (now Circuit Judge) Chapman adopted the definition of abandonment contained in United States v. Colbert, 474 F.2d 174 (5th Cir.1973), an en banc decision of the Fifth Circuit. As the Court said in that case, the issue is not abandonment in the strict property right sense, but whether the person prejudiced by the search “had voluntarily discarded, left behind or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” See 474 F.2d at 176; see also, United States v. Williams, 569 F.2d 823, 826 (5th Cir.1978). Whether a person has maintained a reasonable expectation of privacy in the property seized is a question which must be judged by objective standards. United States v. Kendall, 655 F.2d 199, 201 (9th Cir.1981). Applying these principles to the facts here, this Court finds and concludes that defendant John Walker had abandoned the grocery bag and all of its contents when law enforcement authorities came"
},
{
"docid": "6279795",
"title": "",
"text": "reasonableness of a search, ... in certain limited circumstances neither is required.” New Jersey v. T.L.O., 469 U.S. 325, 340, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (internal quotation marks omitted). The “underlying command of the Fourth Amendment is always that searches and seizures be reasonable,” and “what is reasonable depends on the context within which a search takes place.” Id. at 337, 105 S.Ct. 733. In the circumstances of the present case, several well-established principles are pertinent. First, the Fourth Amendment’s prohibition against unreasonable searches is designed to protect an individual’s reasonable expectation of privacy. See, e.g., United States v. Salvucci, 448 U.S. 83, 91-93, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). However, mere ownership of property does not establish a legitimate expectation of privacy unless the owner vigilantly protects the right to exclude others. See, e.g., id.; United States v. Torres, 949 F.2d 606, 608 (2d Cir.1991). Thus, even in the absence of a warrant and probable cause, a search of property that has been abandoned, for example, does not violate a privacy interest. See, e.g., id. (no expectation of privacy in shoulder bag where defendant disclaimed ownership of bag and knowledge of its contents); United States v. Lee, 916 F.2d 814, 818 (2d Cir.1990) (defen dant’s repeated statements disavowing ownership of suitcase constituted abandonment, thereby forfeiting any legitimate expectation of privacy); cf. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) (no reasonable expectation of privacy in articles left in a hotel room after rental period has expired); United States v. Rahme, 813 F.2d 31, 34-35 (2d Cir.1987) (same). And although an owner retains some privacy interest in property that is merely lost or stolen, rather than intentionally abandoned, that interest is outweighed by the interest of law enforcement officials in identifying and returning such property to the owner. See, e.g., United States v. Sumlin, 909 F.2d 1218, 1220 (8th Cir.), cert. denied, 498 U.S. 1000, 111 S.Ct. 559, 112 L.Ed.2d 566 (1990). Second, when the authorities have come into possession of a container lawfully, it is reasonable, within the meaning"
},
{
"docid": "23006883",
"title": "",
"text": "the time of her arrest and therefore could not challenge the legality of its search and seizure. The court based its decision on its finding that Lynette had abandoned the purse. It is firmly established that warrantless searches of abandoned property do not violate the Fourth Amendment. Abel v. United States, 362 U.S. 217, 240-41, 80 S.Ct. 683, 697-98, 4 L.Ed.2d 668 (1960); United States v. Kendall, 655 F.2d 199, 200 (9th Cir.), cert. denied, 455 U.S. 941, 102 S.Ct. 1434, 71 L.Ed.2d 652 (1981); United States v. Diggs, 649 F.2d 731, 735 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981). One who has voluntarily abandoned property has no right to complain of its search or seizure. United States v. Kendall, 655 F.2d at 200. The intention “to retain a reasonable expectation of privacy is determinative of abandonment.” Id. See United States v. Jackson, 544 F.2d 407, 409 (9th Cir.1976). Thus, if the person alleged to have abandoned property intends to retain his or her privacy interest in the allegedly abandoned property, there has been no abandonment.. Whether a person intends to retain a privacy interest in the property is determined by objective standards. United States v. Kendall, 655 F.2d at 201. In making this determination, we look to the party’s “words, acts, and other objective facts.” United States v. Jackson, 544 F.2d at 409 (citation omitted). The District Court, relying principally on Lynette’s statement that she had “just found” the purse, concluded that Lynette had evidenced an intention to abandon the purse. We must uphold this finding unless we find it “clearly erroneous.” United States v. Diggs, 649 F.2d at 735; United States v. Humphrey, 549 F.2d 650, 652 (9th Cir.1977). Our review of the record leads us to conclude that the District Court clearly erred in finding that Lynette had abandoned her privacy interest in the purse. Although Lynette initially disclaimed ownership of the purse, her subsequent conduct during the confrontation with Officer Williamson strongly indicated her intent to retain a “reasonable expectation of privacy in the purse.” At one point during"
},
{
"docid": "16631931",
"title": "",
"text": "evidence presented at trial in the light most favorable to the government, the court’s finding is clearly erroneous. Here, the encounter escalated within a matter of seconds, from a simple traffic stop to a crack cocaine possession case. When Officer Ford observed the amber colored pill vial containing what he recognized to be “rock” or crack cocaine, which Trimble had removed from his waistband and either had abandoned or was attempting to discard, Officer Ford had probable cause to arrest Trimble for possession of a controlled substance. The district court’s finding/conclusion that Trimble had abandoned both the shoulder bag and the vial prior to the seizures by Ford finds support in the record and is not clearly erroneous. A finding of abandonment of property is reviewed under the clearly erroneous standard. In United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.), cert. denied, 464 U.S. 859, 104 S.Ct. 184, 78 L.Ed.2d 163 (1983), we observed: In Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960), the Supreme Court declared that the government's warrantless seizure of abandoned property did not violate the Fourth Amendment. Id. at 241, 80 S.Ct. at 698. Since Abel, the circuit courts have examined the issue, and the following guidelines to the abandoned property exception to the Fourth Amendment's warrant requirement have emerged. When individuals voluntarily abandon property, they forfeit any expectation of privacy in it they might have had. United States v. Berd, 634 F.2d 979, 987 (5th Cir.1981). Therefore, a warrantless search or seizure of abandoned property is not unreasonable under the Fourth Amendment. E.g., United States v. Diggs, 649 F.2d 731, 735 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981); Berd, 634 F.2d at 987; United States v. D'Avanzo, 443 F.2d 1224, 1225-26 (2d Cir.), cert. denied, 404 U.S. 850, 92 S.Ct. 86, 30 L.Ed.2d 89 (1971). The existence of police pursuit or investigation at the time of abandonment does not of itself render the abandonment involuntary. United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973); see generally, e.g.,"
},
{
"docid": "23645161",
"title": "",
"text": "U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); United States v. McDonald, 100 F.3d 1320, 1327 (7th Cir.1996). This is because Fourth Amendment protection only extends to places and items for which a person has a reasonable expectation of privacy, and no person can have a reasonable expectation of privacy in an item that he has abandoned. Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 68 L.Ed. 898 (1924); Bond v. United States, 77 F.3d 1009, 1013 (7th Cir.1996). To demonstrate abandonment, the government must establish by a preponderance of the evidence that the defendant’s voluntary words or conduct would lead a reasonable person in the searching officer’s position to believe that the defendant relinquished his property interests in the item searched or seized. United States v. Stephens, 206 F.3d 914, 917 (9th Cir.2000); Bond, 77 F.3d at 1013. Because this is an objective test, it does not matter whether the defendant harbors a desire to later reclaim an item; we look solely to the external manifestations of his intent as judged by a reasonable person possessing the same knowledge available to the government agents. United States v. Rem, 984 F.2d 806, 810 (7th Cir.1993); United States v. Hedrick, 922 F.2d 396, 397 (7th Cir.1991); United States v. Liu, 180 F.3d 957, 960 (8th Cir.1999). We look at the totality of the circumstances, but pay particular attention to explicit denials of ownership and to any physical relinquishment of the property. United States v. Chandler, 197 F.3d 1198, 1200 (8th Cir.1999); Liu, 180 F.3d at 960; United States v. Ramos, 12 F.3d 1019, 1025 (11th Cir.1994). There are three general types of abandonment cases, which are based on these two indicia of abandonment. The first type is characterized by the presence of a fleeing defendant who relinquishes an object to make his flight easier or because discarding the item might make it easier for him to later claim that he never possessed it. See, e.g., California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Hester, 265 U.S. at 58, 44"
},
{
"docid": "23018876",
"title": "",
"text": "to the Government. McAlpine, 919 F.2d at 1463; Neu, 879 F.2d at 807. And where findings are not made, this court must uphold the ruling of the trial court if there exists any reasonable view of the evidence to support it. Neu, 879 F.2d at 807. Included in the trial court’s factual findings were the following findings relating to the tan bag: (1) that Mr. Morgan “threw the bag to the south side of the porch;” and (2) that “[t]he bag carried, and then thrown by the Defendant, was taken to the Tulsa Police Station and there searched.” Upon review of the record, and viewing all evidence in the light most favorable to the Government, we find these factual findings of the trial court were not clearly erroneous. We also conclude Mr. Morgan abandoned the gym bag and any privacy interests he had in it. In Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960), the Supreme Court held the warrantless seizure of abandoned property did not violate the Fourth Amendment. See also United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.) (“[A] warrantless search or seizure of abandoned property is not unreasonable under the Fourth Amendment.”), cert. denied, 464 U.S. 859, 104 S.Ct. 184, 78 L.Ed.2d 163 (1983). Although the trial court neglected to make findings on this issue, we find the record reveals an abandonment. Under Neu, 879 F.2d at 807, we must uphold the denial of the motion to suppress “if there is any reasonable view of the evidence to support it.” Id. (emphasis added). In Jones, this court acknowledged that “[w]hen individuals voluntarily abandon property, they forfeit any expectation of privacy in it that they might have had.” 707 F.2d at 1172. Thus, determinations of abandonment are based on whether the individual has retained any reasonable expectation of privacy in the object. Id. The existence of such an expectation is a question of intent requiring us to examine words spoken, actions taken, and other objective facts involved. Id. Here, we have the trial court’s finding that Mr. Morgan"
},
{
"docid": "19276865",
"title": "",
"text": "He admitted that he did not object during the murder case and never raised an objection in direct or collateral appeal. The district court overruled Barlow’s objection to the use of the prior murder conviction for sentencing. Barlow was sentenced to three hundred months’ imprisonment to be followed by five years’ supervised release. III. Barlow first contends that the district court erred m denying his motion to suppress the evidence seized from his car without a warrant. In reviewing a ruling on a motion to suppress evidence, we accept the district court’s factual findings unless they are clearly erroneous or are influenced by an incorrect view of the law. United States v. Gar cia, 849 F.2d 917, 917 n. 1 (5th Cir.1988). Nevertheless, we review conclusions of law de novo. United States v. Diaz, 977 F.2d 163, 164 (5th Cir.1992). A Under Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967), no warrantless search is lawful if the accused manifested a reasonable expectation of privacy in the object searched. One cannot, however, manifest a reasonable expectation of privacy in an item once it has been abandoned. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973) (en banc). The test for determining when an object has been abandoned is one of intent, which “may be inferred from words spoken, acts done, and other objective facts.” Colbert, 474 F.2d at 176. The accused need not have abandoned the searched item in the strict property sense, where an intent to relinquish ownership must be shown; merely an intent voluntarily to relinquish his privacy interest is sufficient. See id; David H. Steinberg, Note, Constructing Homes for the Homeless? Searching for a Fourth Amendment Standard, 41 Duke L. J. 1508,1529-32 (1992). A defendant has abandoned his reasonable expectation of privacy when he leaves an item in a public place. California v. Greenwood, 486 U.S. 35, 40, 108"
},
{
"docid": "23248530",
"title": "",
"text": "impartial verdict as to each.” United States v. Walton, 552 F.2d 1354, 1362 (10th Cir.), cert. denied, 431 U.S. 959, 97 S.Ct. 2685, 53 L.Ed.2d 277 (1977). II. ABANDONMENT Jones argues that the warrantless search of the satchel violated his Fourth Amendment rights. The trial court held that the search was permissible on two grounds: that Jones had abandoned the satchel and therefore had no legitimate expectation of privacy in it entitling him to Fourth Amendment protection; and that the search was permissible as incident to a lawful arrest. Because of our resolution of the first ground, we need not address the court’s alternative holding that the search was incident to Jones’ arrest, and we offer no opinion as to the correctness of that holding. In Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960), the Supreme Court declared that the Government’s warrantless seizure of abandoned property did not violate the Fourth Amendment. Id. at 241, 80 S.Ct. at 698. Since Abel, the circuit courts have examined the issue, and the following guidelines to the “abandoned property” exception to the Fourth Amendment’s warrant requirement have emerged. When individuals voluntarily abandon property, they forfeit any expectation of privacy in it that they might have had. United States v. Berd, 634 F.2d 979, 987 (5th Cir.1981). Therefore, a warrantless search or seizure of abandoned property is not unreasonable under the Fourth Amendment. E.g., United States v. Diggs, 649 F.2d 731, 735 (9th Cir.), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981); Berd, 634 F.2d at 987; United States v. D’Avanzo, 443 F.2d 1224, 1225-26 (2d Cir.), cert. denied, 404 U.S. 850, 92 S.Ct. 86, 30 L.Ed.2d 89 (1971). The existence of police pursuit or investigation at the time of abandonment does not of itself render the abandonment involuntary. United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973); see generally, e.g., Berd, 634 F.2d at 987; United States v. Canady, 615 F.2d 694 (5th Cir.), cert. denied, 449 U.S. 862, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); United States v. Williams,"
},
{
"docid": "390294",
"title": "",
"text": "the determination of Fourth Amendment standing, not to the evaluation of the “reasonableness” of a warrantless search or seizure against which a defendant has a valid claim to Fourth Amendment protection. See Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), which is the source of the abandonment doctrine. This realization elucidates the theory underlying the abandonment principle. Simply formulated, the theory is that a person who abandons property no longer has “a reasonable expectation of freedom from governmental intrusion” into the area, or from governmental appropriation of the property, which was abandoned. See DeForte, supra, at 368, 88 S.Ct. at 2124; United States v. Bell, 457 F.2d 1231, 1239 (5th Cir. 1972); United States v. Cox, 428 F.2d 683, 688 (7th Cir. 1970), cert. denied, 400 U.S. 881, 91 S.Ct. 127, 27 L.Ed.2d 120 (1970); United States v. Cowan, 396 F.2d 83, 86-88 (2d Cir. 1968). In other words, the question is not whether there has been abandonment in the property law sense, compare Jones v. United States, 362 U.S. 257, 265-267, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) with Katz, supra, at 351-352, 88 S.Ct. 507, but rather whether there has been abandonment of a reasonable expectation of privacy as to the area searched or the property seized. Thus, the Supreme Court has distinguished a situation where a person dropped a package on the floor of a taxicab from which he then alighted from situations involving property left in a vacated hotel room or in an open field. See Rios v. United States, 364 U.S. 253, 256, 262 n. 6, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960). Likewise, it has been held that a person does not give up his expectation of privacy with respect to letters and sealed packages when he deposits them in the mail. See United States v. Van Leeuwen, 397 U.S. 249, 251-252, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). From this perspective, the flaw in the government’s argument becomes immediately apparent. When Mr. Kahan threw papers in his wastebasket, he did “abandon” them in the sense that"
},
{
"docid": "1298370",
"title": "",
"text": "also contends that an essential element of the offense was never shown with respect to the second count, mandating reversal of that conviction. II. In reviewing a district court’s denial of a motion to suppress, we accept the district court’s findings of fact unless they are clearly erroneous. United States v. Bute, 43 F.3d 531, 534 (10th Cir.1994); United States v. Neu, 879 F.2d 805, 807-08 (10th Cir.1989). We review de novo the ultimate question of whether a search or seizure was reasonable under the Fourth Amendment. Bute, 43 F.3d at 534. The first issue in this appeal concerns Mr. Flynn’s conviction for possession with intent to distribute methamphetamine. Mr. Flynn appeals the denial of his motion to suppress the evidence obtained by the officers, including both the package dropped from the car at the top of the exit ramp and the package Mr. Flynn’s passenger presented to the officers who stopped the car. He contends all evidence was obtained in violation of his Fourth Amendment rights. We disagree. As to the package dropped from the car, the Fourth Amendment allows for warrantless search and seizure of abandoned property. United States v. Hernandez, 7 F.3d 944, 947 (10th Cir.1993). The test for abandonment is whether the defendant retained a reasonable expectation of privacy in the property. Id. If, for example, the defendant continues to try to protect the property from the police, it has not been abandoned. Smith v. Ohio, 494 U.S. 541, 543-44, 110 S.Ct. 1288, 108 L.Ed.2d 464 (1990) (holding bag thrown on hood of car not abandoned when police had to remove defendant’s hand from bag in order to search it). In order to be effective, abandonment must be voluntary. It is considered involuntary if it results from a violation of the Fourth Amendment. Hernandez, 7 F.3d at 947. “[P]olice pursuit or investigation at the time of abandonment does not of itself render the abandonment involuntary.” United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.1983); see also California v. Hodari, 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); United States v. Klinginsmith, 25"
},
{
"docid": "19276866",
"title": "",
"text": "searched. One cannot, however, manifest a reasonable expectation of privacy in an item once it has been abandoned. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973) (en banc). The test for determining when an object has been abandoned is one of intent, which “may be inferred from words spoken, acts done, and other objective facts.” Colbert, 474 F.2d at 176. The accused need not have abandoned the searched item in the strict property sense, where an intent to relinquish ownership must be shown; merely an intent voluntarily to relinquish his privacy interest is sufficient. See id; David H. Steinberg, Note, Constructing Homes for the Homeless? Searching for a Fourth Amendment Standard, 41 Duke L. J. 1508,1529-32 (1992). A defendant has abandoned his reasonable expectation of privacy when he leaves an item in a public place. California v. Greenwood, 486 U.S. 35, 40, 108 S.Ct. 1625, 1629, 100 L.Ed.2d 30 (1988). In United States v. Edwards, 441 F.2d 749, 751 (5th Cir.1971), a defendant relinquished his privacy rights when, after a high-speed chase, he “abandoned his car ... on a public highway, with engine running, keys in the ignition, lights on, and fled on foot.” The rationale for allowing such warrantless searches is that the automobile owner has no reasonable expectation of privacy in the car’s vehicle identification number. Id. (citations omitted). Thus, a.police officer may enter a vehicle on public property to ascertain its owner. Kimbrough v. Beto, 412 F.2d 981 (5th Cir.1969). The officer may even enter a locked trunk as part of his inspection. Edwards, 441 F.2d at 754. Other cases support this view that an abandoned vehicle may be inspected. In United States v. Williams, 569 F.2d 823, 826 (5th Cir.1978), a defendant who had unhitched the trailer from his tractor and drove away could not complain of the warrantless search of his trailer left behind unlocked at a roadside rest area. In United States"
},
{
"docid": "3180429",
"title": "",
"text": "Cir.1986); United States v. Binder, 794 F.2d 1195, 1198 (7th Cir.), cert. denied, 479 U.S. 869, 107 S.Ct. 234, 93 L.Ed.2d 159 (1986). B. The Law of Abandonment The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. Amdmt. IV. A person may possess a privacy interest in the contents of personal luggage. United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983). However, that privacy interest can be forfeited where the person abandons the luggage. United States v. Rush, 890 F.2d 45, 48 (7th Cir.1989). Fourth Amendment protection does not extend to abandoned property. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960). This case involves a question of pre-search abandonment. We are not presented with a question of whether a reasonable suspicion or probable cause justified Kin-sella’s search of Rem’s suitcase. If Rem indeed abandoned the suitcase before the police searched it, the Fourth Amendment inquiry ends. A test has been articulated for determining whether an abandonment has occurred for purposes of Fourth Amendment analysis: The test for abandonment is whether an individual has retained any reasonable expectation of privacy in the object. This determination is to be made by objective standards. An expectation of privacy is a question of intent which “may be inferred from words spoken, acts done, and other objective facts.” United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.), cert. denied, 464 U.S. 859, 104 S.Ct. 184, 78 L.Ed.2d 163 (1983) (quoting United States v. Kendall, 655 F.2d 199, 201 (9th Cir.1981), cert. denied, 455 U.S. 941, 102 S.Ct. 1434, 71 L.Ed.2d 652 (1982)); see also United States v. Hedrick, 922 F.2d 396, 397 (7th Cir.) (abandonment depends on whether expectation of privacy in object is “objectively reasonable”), cert. denied, — U.S. -, 112 S.Ct. 147, 116 L.Ed.2d 113 (1991); United States v. Akin, 562 F.2d 459, 464 (7th Cir.1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531 (1978). “When a"
},
{
"docid": "5332512",
"title": "",
"text": "and then printing them. Ray was instructed to destroy the excess copies, the negatives, and the paste-ups, after he completed the job. He did destroy the extra copies but forgot to destroy the negatives and paste-ups. Two years later, after he had agreed to become an informant, Ray by chance came across a job envelope with the words “Dr. Celia” on the cover in his general work area. Inside the envelope were the negatives and paste-ups. The government argues that the defendants abandoned the negatives and paste-ups when they ordered Ray to destroy them. If a person has voluntarily abandoned property, he has no standing to complain of its search and seizure. Abel v. United States, 362 U.S. 217, 240-41, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); United States v. Knight, 412 F.2d 292 (9th Cir. 1969). Abandonment in this context is not meant in the strict property-right sense, but rests instead on whether the person so relinquished his interest in the property that he no longer retains a reasonable expectation of privacy in it at the time of the search. United States v. Jackson, 544 F.2d 407, 409 (9th Cir. 1976). The issue therefore is a factual one; abandonment is primarily a question of intent, and intent. may be inferred from words, acts and other objective facts. Id. The requisite intent has been held to be present by such acts as: throwing contraband out of a moving vehicle when pursued by police, United States v. McLaughlin, 525 F.2d 517, 519 (9th Cir. 1975), cert. denied, 427 U.S. 904, 96 S.Ct. 3190, 49 L.Ed.2d 1198 (1976); a denial of ownership when questioned, even if the defendant is seen previously in possession of the item, Jackson, supra, 544 F.2d at 409 and 411; and leaving the item behind in a trash basket at a hotel after checking out, Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), or in a trash can next to the sidewalk, United States v. Mustone, 469 F.2d 970, 972 (1st Cir. 1972). (Again, see Note 14.) As we have previously"
},
{
"docid": "22188714",
"title": "",
"text": "v. Ramapuram, 632 F.2d 1149, 1155 (4th Cir.1980). 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. TV. The Supreme Court has held that, with few exceptions, warrantless searches are “per se unreasonable” under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). “At the very core of the Fourth Amendment stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (internal quotation marks and citations omitted). And the protection of a house extends to apartments, rented rooms within a house, and hotel rooms so that a landlord may not give the police consent to a warrantless search of a rented apartment or room. See Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (hotel room); Chapman v. United States, 365 U.S. 610, 616-17, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (rented house). At bottom, the Fourth Amendment protects a “subjective expectation of privacy that society recognizes as reasonable.” Kyllo, 533 U.S. at 33, 121 S.Ct. 2038. But if society is unwilling to recognize the reasonableness of a subjective expectation, a search implicating the Fourth Amendment does not occur — “even when the explicitly protected location of a house is concerned.” Id. When a person voluntarily abandons his privacy interest in property, his subjective expectation of privacy becomes unreasonable, and he is precluded from seeking to suppress evidence seized from it. United States v. Leshuk, 65 F.3d 1105, 1111 (4th Cir.1995); see also Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) (“There can be nothing unlawful in the Government’s appropriation of ... abandoned property”). “[T]he proper test for abandonment is not whether all formal property rights"
},
{
"docid": "21089734",
"title": "",
"text": "2476, 2481, 53 L.Ed.2d 538 (1977), overruled in part, California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991)). But “[a] warrantless search and seizure of abandoned property is not unreasonable under the Fourth Amendment.” Hernandez, 7 F.3d at 947; see also Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960). It is not unreasonable because “[wjhen individuals voluntarily abandon property, they forfeit any expectation of privacy in it that they might have had.” United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.), cert. denied, 464 U.S. 859, 104 S.Ct. 184, 78 L.Ed.2d 163 (1983). An abandonment must be voluntary, and an abandonment that results from a Fourth Amendment violation cannot be voluntary. Hernandez, 7 F.3d at 947. Consequently, even if the district court correctly concluded that defendant abandoned the bag at the security office, we must determine whether that abandonment was the result of an earlier Fourth Amendment violation. Thus, the district court should have examined the legality of the search from the time of Hoppe’s first encounter with Hollis. “The test for abandonment is whether an individual has retained any reasonable expectation of privacy in the object.” Jones, 707 F.2d at 1172. “An expectation of privacy is a question of intent which may be inferred from words, acts, and other objective facts.” Hernandez, 7 F.3d at 947. When defendant left his bag in Hollis’s care, he asked Hollis to watch it for him. He clearly intended to return and retrieve the bag. Cf. United States v. Morgan, 936 F.2d 1561, 1570 (10th Cir.1991) (in concluding that the defendant abandoned a gym bag, the court noted that the defendant had not “left [the item] to the care or responsibility of another”), cert. denied, 502 U.S. 1102, 112 S.Ct. 1190, 117 L.Ed.2d 431 (1992). In fact, defendant did return to retrieve the bag approximately fifteen minutes after leaving it with Hollis. Based on these facts, we conclude that defendant intended to retain a privacy interest in the luggage. But defendant must show more than his subjective intent. His expectation"
}
] |
24694 | it had “carefully considered the statements of the parties and the information contained in the violation packet,” and concluded that “a sentence above the guideline range is appropriate.” This statement adequately demonstrates that the district court “considered the parties’ arguments and has a reasoned basis for exercising [its] decisionmaking authority.” Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). The district court’s “acknowledgment that it considered defendant’s arguments and the factors in § 3553(a) is sufficient,” even if all of the factors were not discussed. McNair, 605 F.3d at 1231. District courts are not obligated to follow the Chapter 7 policy statements: like the rest of the Guidelines, the policy statements are advisory only. REDACTED And in any event, the district court did consult the applicable policy statement in this case; it concluded that the sentence recommended in Chapter 7 of the Sentencing Guidelines would be insufficient, and sentenced Defendant to an above-range term of imprisonment. Defendant has also not shown the district court’s sentence to be substantively unreasonable, either. Although Defendant asserts that the district court was motivated by personal feelings, the record supports the sentence as not unreasonable under the circumstances. District courts do not need “extraordinary circumstances” to justify a sentence outside the Guidelines range, but they must explain their choice of sentence adequately. Gall, 128 S.Ct. at 597. In defendant’s case, the district court explained that its previous sentence was lenient | [
{
"docid": "22402792",
"title": "",
"text": "detention under § 5037(c). Thus, the district court did not err. II. Silva also argues that the district court abused its discretion in imposing a sentence above the recommended Chapter 7 guidelines range, U.S.S.G. § 7B1.4. We review a district court’s decision to exceed the Chapter 7 recommended guidelines range for an abuse of discretion. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir.2000). The version of § 5037(b) at issue indicates that § 3565, governing revocation of probation, applies to juvenile probation orders. Under that statute, a district court, upon finding that a defendant violated probation, may revoke the term of probation and impose a term of imprisonment after considering the factors set out in 18 U.S.C. § 3553(a). 18 U.S.C. § 3565(a). Relevant factors include the nature and eircum- stances of the offense, the history and characteristics of the defendant, the need for the sentence imposed to afford adequate deterrence to criminal conduct, the kinds of sentences and sentencing ranges established under the applicable guidelines, and policy statements issued by the Sentencing Commission. 18 U.S.C. § 3553(a)(1), (2)(B), (4)(B). The sentencing court “shall state in open court the reasons for its imposition of a particular sentence, and if the sentence ... is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for imposition of a sentence different from that described.” 18 U.S.C. § 3553(c)(2). Chapter 7 of the Sentencing Guidelines governs violations of probation and contains policy statements, one of which provides recommended ranges of imprisonment applicable upon revocation. U.S.S.G. § 7B1.4, p.s. We have consistently held that the policy statements of Chapter 7 are merely advisory and not binding. Aguillard, 217 F.3d at 1320. While the district court is required to consider the policy statements, it is not bound by them. United States v. Brown, 224 F.3d 1237, 1242 (11th Cir.2000). When exceeding the recommended range, the court must normally indicate that it considered the Chapter 7 policy statements. Aguillard, 217 F.3d at 1320. The district court did not abuse its discretion in imposing a 24-month sentence on Silva."
}
] | [
{
"docid": "19991101",
"title": "",
"text": "review [a] sentence under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Our court “must first ensure that the district court committed no significant procedural error, such as ... failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. If the sentence is procedurally sound, we “then consider the substantive reasonableness of the sentence imposed.” Id. at -, 128 S.Ct. at 597. Procedurally, a sentencing court should first accurately calculate a defendant’s sentencing Guidelines range and provide each party an opportunity to explain their desired sentence. See id. at -, 128 S.Ct. at 596. The district court-must then consider each of the § 3553(a) factors and conduct an individualized assessment to determine what sentence is appropriate given the facts in the particular case. Id. at-, 128 S.Ct. at 596-97. “In explaining the chosen sentence and analyzing the relevant § 3553(a) factors, ‘a district court is not required to provide a full opinion in every case, but must set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.’ ” United States v. Hill, 552 F.3d 686, 691 (8th Cir.2009) (quoting United States v. Robinson, 516 F.3d 716, 718 (8th Cir.2008)) (internal marks omitted). The district court accurately calculated Hernandez’s Guidelines range and provided Hernandez with the opportunity to argue for his desired sentence. Based upon Hernandez’s offense level of 32 and criminal history category III, Hernandez’s Guideline range was 151 to 188 months imprisonment. The court then considered the § 3553(a) factors and determined, based upon the facts before it, that a sentence at the bottom of the Guidelines range, 151 months, was appropriate. “Where, as here, the sentence imposed is within the advisory guideline range, we accord it a presumption of reasonableness.” United States v. Harris, 493 F.3d 928, 932 (8th Cir.2007) (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462-63, 168 L.Ed.2d 203 (2007); United"
},
{
"docid": "22585851",
"title": "",
"text": "Lastly, all of the defendants argue that the district court erred when sentencing them to life in prison. In support, they contest the procedural and substantive reasonableness of their sentences. As to procedural reasonableness, they claim that the district court erred in calculating their guidelines ranges. They also contend that the district judge created an unwarranted sentencing disparity by failing to provide each of them individual consideration. Challenging the substantive reasonableness of their sentences, the defendants assert that their sentences were greater than necessary to achieve the purposes of sentencing and that the district judge improperly relied upon the child pornography Guidelines, which they claim are flawed. We find that the defendants’ sentences were neither procedurally nor substantively unreasonable. I. When reviewing the procedural reasonableness of a sentence, we will first ensure that “the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). See also United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (same). In explaining its reasons for imposing a sentence, the district court need not discuss each factor. Irey, 612 F.3d at 1194-96. Rather, “[t]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). The district court’s acknowledgment that it considered the defendants’ arguments at sentencing and that it considered the factors set forth in § 3553(a) alone is sufficient explanation for a particular sentence. United States v. Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005). On consideration of the voluminous trial record, we find no basis for any claim of procedural unreasonableness. To put the sentencing in its proper context, all of the defendants now before"
},
{
"docid": "22650213",
"title": "",
"text": "mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall, 128 S.Ct. at 597. When rendering a sentence, the district court “must make an individualized assessment based on the facts presented.” Id. (emphasis added). That is, the sentencing court must apply the relevant § 3553(a) factors to the specific circumstances of the case before it. Such individualized treatment is necessary “to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Id. at 598 (citation omitted). Moreover, the district court must “state in open court” the particular reasons supporting its chosen sentence. 18 U.S.C. § 3553(c) (2006). In doing so, “[t]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). This not only “allow[s] for meaningful appellate review” but it also “promote[s] the perception of fair sentencing.” Gall, 128 S.Ct. at 597. “Where the defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence” than that set forth in the advisory Guidelines, a district judge should address the party’s arguments and “explain why he has rejected those arguments.” Rita, 127 S.Ct. at 2468. Here, the district court did not justify Carter’s sentence with an individual ized rationale. To be sure, the district court offered a variety of statements respecting the below-Guidelines sentence. For example, the court stated that “there is an appealing argument by [the] defense that this overpunishes his particular conduct.” But the court did not explain why a Guidelines sentence would “overpunish” Carter. Similarly, the district court stated that it was “telling the reviewing body that [it was] looking at the four purposes in Section 3553(a)(2),” and then summarized those four purposes. But the court"
},
{
"docid": "22665428",
"title": "",
"text": "explained that this reasonableness review has procedural and substantive components. First, an appellate court must review for procedural reasonableness, ensuring] that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Id. If the appellate court finds a sentence procedurally reasonable, it then moves to the second step, in which it “considers] the substantive reasonableness of the sentence imposed under an abuse-of-diseretion standard.” Id.; see also Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). These consolidated cases present claims only of pro cedural error, i.e. that a sentencing court assertedly “fail[ed] to consider the § 3553(a) factors” and “adequately explain the chosen sentence,” as required by § 3553(c). Gall, 552 U.S. at 51, 128 S.Ct. 586; see also Rita, 551 U.S. at 356, 127 S.Ct. 2456. The Supreme Court has held that when sentencing, a court must demonstrate that it “considered the parties’ arguments and ha[d] a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita, 551 U.S. at 356, 127 S.Ct. 2456. “[A] statement of reasons is important” because it “helps [the sentencing] process evolve,” id. at 356, 357, 127 S.Ct. 2456, “allow[s] for meaningful appellate review[,] and ... promote[s] the perception of fair sentencing.” Gall, 552 U.S. at 50, 128 S.Ct. 586. We have addressed claims of procedural sentencing error in several recent cases. Relying on Supreme Court guidance, we have held that for every sentence — whether above, below, or within the Guidelines range — a sentencing court must “place on the record an ‘individualized assessment’ based on the particular facts of the case before it.” United States v. Carter, 564 F.3d 325, 330 (4th Cir.2009) (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). But we have also held that in explaining a sentencing decision, a court"
},
{
"docid": "22239167",
"title": "",
"text": "to apply the guidelines to a particular case does “not necessarily require lengthy explanation.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007); United States v. Ghertler, 605 F.3d 1256, 1262 (11th Cir.2010) (“A sentencing court is not required to incant the specific language used in the guidelines or articulate its consideration of each individual § 3553(a) factor, so long as the record reflects the court’s consideration of many of those factors.” (quotation marks omitted)); United States v. Flores, 572 F.3d 1254, 1271 (11th Cir.2009) (“The district court explicitly stated that it considered the § 3553(a) factors and did not need to individually discuss each of these factors.”); United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.2008) (“In consideration of the § 3553(a) factors, the district court does not need to discuss or state each factor explicitly.... An acknowledgment the district court has considered the defendant’s arguments and the § 3553(a) factors will suffice.”). Here, the district court properly calculated the § 2G2.2-based guidelines range, treated the range as advisory, recognized that it had discretion to vary, considered the statutory sentencing factors as applied to Cubero, imposed a guidelines sentence supported by the § 3353(a) factors, and adequately explained the sentence imposed. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The district court’s approach was proeedurally reasonable, and the sentencing procedure produced a substantively reasonable sentence. Accord United States v. Grigsby, 749 F.3d 908, 911 (10th Cir.2014) (noting that the Commission’s 2013 report does not “stand for the proposition that any application of § 2G2.2 will yield an unreasonable sentence”). VI. CONCLUSION For the forgoing reasons, Cubero’s sentences and term of supervised release are affirmed. AFFIRMED. . PTHC is an acronym for \"pre-teen hard core\" pornography. . The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3)"
},
{
"docid": "22634486",
"title": "",
"text": "was appropriate is insufficient to justify reversal of the district court.” Id. Stoterau raises both procedural and substantive objections to his sentence. He first contends that the district court did not adequately consider the § 3553(a) factors. According to Stoterau, the district court merely engaged in a rote recitation of § 3553(a) and thereby violated the Supreme Court’s admonishment that “[t]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, — U.S. ———, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). While district courts are required to “state in open court the reasons for [their] imposition of the particular sentence,” 18 U.S.C. § 3553(c), this obligation does “not necessarily require lengthy explanation.” Rita, 127 S.Ct. at 2468. “Circumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical.” Id. “Judges need not rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less.” United States v. Mix, 457 F.3d 906, 912 (9th Cir.2006) (internal quotation marks omitted). Likewise, “when a party raises a specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence, then the judge should normally explain why he accepts or rejects the party’s position.” United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008) (en banc). However, when a defendant’s arguments are straightforward and uncomplicated, the district court does not abuse its discretion when it listens to the defendant’s arguments and then “simply [finds those] circumstances insufficient to warrant a sentence lower than the Guidelines range.” Id. at 995 (quoting Rita, 127 S.Ct. at 2469). In this case, the district court"
},
{
"docid": "22650214",
"title": "",
"text": "decisionmaking authority.” Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). This not only “allow[s] for meaningful appellate review” but it also “promote[s] the perception of fair sentencing.” Gall, 128 S.Ct. at 597. “Where the defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence” than that set forth in the advisory Guidelines, a district judge should address the party’s arguments and “explain why he has rejected those arguments.” Rita, 127 S.Ct. at 2468. Here, the district court did not justify Carter’s sentence with an individual ized rationale. To be sure, the district court offered a variety of statements respecting the below-Guidelines sentence. For example, the court stated that “there is an appealing argument by [the] defense that this overpunishes his particular conduct.” But the court did not explain why a Guidelines sentence would “overpunish” Carter. Similarly, the district court stated that it was “telling the reviewing body that [it was] looking at the four purposes in Section 3553(a)(2),” and then summarized those four purposes. But the court did not explain how those purposes applied to Carter. The district court also stated that it was “deliberating on and integrating the seven factors that the reviewing court wants to know that the trial court used and considered and reflected on and were the foundation of the sentencing basis,” and then summarized those factors. But once again, the district court did not explain how those factors related to Carter. Finally, although the district court stated that it took “into account all of the pertinent policy statements issued by the Sentencing Commission,” it did not explain which policy statements it found relevant to Carter. The district court thus erred in failing to articulate how the sentencing factors applied to the facts of the particular case before it. The district court’s asserted “reasons” could apply to any sentence, regardless of the offense, the defendant’s personal background, or the defendant’s criminal history. Indeed — save for the lone, unexplained statement that a within-Guidelines sentence would “over-punish” Carter — the district court could have made precisely the same statements"
},
{
"docid": "23186967",
"title": "",
"text": "(en banc) (internal quotation marks omitted). We have explained that, under the abuse of discretion standard of review, “there will be occasions in which we affirm the district court even though we would have gone the other way.” Id. (internal quotation marks omitted). The burden of establishing unreasonableness lies with the party challenging the sentence. United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005) (per curiam). Here, the government appeals Kuhlman’s sentence; thus, the government carries the burden of demonstrating that Kuhlman’s sentence is unreasonable. III. DISCUSSION A. Reasonableness of Sentence When reviewing the reasonableness of a sentence, our task is two-fold. We will first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Gall, 552 U.S. at 51,128 S.Ct. at 597. In explaining the sentence, the district court should set forth enough information to satisfy the reviewing court of the fact that it has considered the parties’ arguments and has a reasoned basis for making its decision, see Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007), but “nothing ... requires the district court to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.2005). If the district court varies from the Guidelines range, it must offer a justification sufficient to support the degree of the variance. See Irey, 612 F.3d at 1187. After we determine that the district court’s sentencing decision is procedurally sound, we next review the substantive reasonableness of the sentence for abuse of discretion. Gall, 552 U.S. at 51, 128 S.Ct. at 597. We have held that [a] district court abuses its discretion when it (1) fails to afford consideration to relevant"
},
{
"docid": "6286881",
"title": "",
"text": "1283, 1287 (8th Cir.1996); United States v. Smith, 26 F.3d 739, 748 (7th Cir.1994). Because clear and convincing evidence supported the district court’s finding that Hurn possessed cocaine base with intent to distribute, the district court’s use of acquitted conduct did not violate Hum’s Sixth Amendment or due process rights. C. The § 3553(a) Factors and Reasonableness Lastly, Hurn argues that his sentence should be vacated for two reasons that the Supreme Court recently discussed in Rita v. United States, — U.S.-, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007). He argues that the district court did not adequately consider the sentencing factors outlined in 18 U.S.C. § 3553(a) and that his sentence is substantively unreasonable because it gives insufficient weight to his diminished mental capacity. We address each argument in turn. 1. Consideration of § 3553(a) Factors In Rita, the Supreme Court discussed what and how much a sentencing judge must state on the record to demonstrate that it considered the § 3553(a) factors. 127 S.Ct. at 2468-69. Ultimately, the Court concluded that the judge need not say a great deal. In Rita, the defendant was convicted of perjury and requested a sentence below the applicable Guidelines range. He argued that because he was a former government criminal justice employee, other inmates were likely to retaliate against him. He also maintained that his poor physical health and former military service weighed in favor of leniency. The government responded that a former criminal justice employee should have known better than to interfere with a federal investigation. The sentencing judge asked the parties questions about each sentencing factor, and after hearing the parties’ arguments, decided that the defendant’s Guidelines range provided an appropriate sentence that would protect the public from the defendant’s crime. He then sentenced the defendant to the bottom of the Guidelines range. Though the sentencing judge did not mention the defendant’s reasons for leniency, the Supreme Court held that his statement demonstrated that “he ha[d] considered the parties’ arguments and ha[d] a reasoned basis for exercising his own legal decisionmaking authority.” Id. at 2468. The Court said that"
},
{
"docid": "14995945",
"title": "",
"text": "sentences for “reasonableness.” See id. at 261-62, 125 S.Ct. 738. Reasonableness review entails an inquiry into “whether the trial court abused its discretion.” Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007). Our review contains both a procedural and a substantive component. Review for procedural reasonableness focuses on whether the District Court committed any error in calculating or explaining the sentence. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Review for substantive reasonableness asks us to “take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. Recent Supreme Court decisions have clarified the appropriate sentencing procedures for district courts. First, a court must “correctly calculate] the applicable Guidelines range” and “remain cognizant of [the Guidelines] throughout the sentencing process”. See id. at 597 n. 6. As the Gall Court elaborated, however, “[t]he Guidelines are not the only consideration .... Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by the party.” Id. at 596. These factors are: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to 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; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for— (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines— (5) any pertinent policy statement— (A) issued by the Sentencing Commission ... subject to any amend ments made to such policy statement"
},
{
"docid": "3819597",
"title": "",
"text": "public, and to provide defendant with appropriate treatment; any guideline range for sentencing; guideline policy statements; and avoidance of unwarranted disparities.” Washington, 147 F.3d at 491 (citation omitted). The reasonableness review consists of two inquiries: procedural reasonableness and substantive reasonableness. United States v. Smith, 474 F.3d 888, 894 (6th Cir.2007). A sentence may be procedurally unreasonable if the district judge fails to consider the applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), “and instead simply selects what the judge deems an appropriate sentence without such required consideration.” United States v. Collington, 461 F.3d 805, 808 (6th Cir.2006) (quoting United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005)). The district court must also “explain[ ] its reasoning to a sufficient degree to allow for meaningful appellate review.” United States v. Trejo-Martinez, 481 F.3d 409, 412-13 (6th Cir.2007); United States v. Davis, 458 F.3d 505, 510 (6th Cir.2006). “The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). A sentence may be considered substantively unreasonable when the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors, or gives an unreasonable amount of weight to any pertinent factor. Id. Citing United States v. Yopp, 453 F.3d 770 (6th Cir.2006), Brown argues that the sentence should be vacated because the district court only considered the need to provide Brown with drug treatment and failed to consider all other relevant sentencing factors. While the district judge clearly considered the need to provide Brown with appropriate treatment, he also considered the policy statements contained in Chapter Seven of the Sentencing Guidelines and the other relevant sentencing factors. At the hearing, the district judge correctly calculated and considered the appropriate sentencing guideline range. He also considered the nature and circumstances of the offense, noting that Brown was “repeatedly possessing and using illegal"
},
{
"docid": "22240950",
"title": "",
"text": "not procedurally infirm because he failed to consider an unassert-ed, non-mandatory factor. Contrary to defendant’s argument, the record demonstrates that the district court did adequately consider the national sentencing disparities concern embodied in § 3553(a)(6). We therefore reject defendant’s procedural-unreasonableness challenge. , C. Substantive Unreasonableness Defendant also argues that his sentence is substantively unreasonable, i.e., greater than necessary to comply with the purposes of sentencing. Defendant need not have asserted a substantive-unreasonableness objection in the district court to preserve the issue for appeal. Vonner, 516 F.3d at 389 (observing that, because “reasonableness” is the standard of appellate review, a litigant has no duty to object in the district court to the unreasonableness of the length of the sentence). Hence, we review the substantive-unreasonableness challenge not for plain error, but for abuse of discretion. The Supreme Court has defined the scope of this review as follows: When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness. [Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2462-68, 168 L.Ed.2d 203 (2007) ]. But if the sentence is outside the Guidelines range, the court may not apply a presumption of unreasonableness. It may consider the extent of the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court. Gall, 128 S.Ct. at 597. Arguably, the presumption of reasonableness validated in Rita, as recognized in Gall, may not apply here, as the district court did not impose a sentence within the advisory Guidelines range, but granted a three-month downward variance from the low end of the range. See Phinazee, 515 F.3d at 514; Kirchhof, 505 F.3d at 414-15. Yet, the fact that the sentence"
},
{
"docid": "18099971",
"title": "",
"text": "record from the oral sentencing was ambiguous, therefore, we conclude that the written Statement of Reasons does not give rise to the inference that the district court departed under the Guidelines. The record makes clear that the court intended to vary from the Guidelines range. III. Alternatively, Denny argues that the 60-month sentence imposed by the district court was proeedurally and substantively unreasonable. This court reviews sentences for both procedural and substantive reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A. Procedural unreasonableness may occur when a sentencing court “fail[s] to calculate (or improperly calculates]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the [18 U.S.C.] § 3553(a) factors, selects] a sentence based on clearly erroneous facts, or failfs] to adequately explain, the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. Denny puts forward two claims with regard to procedural unreasonableness. The first is that the district court “failed to adequately explain its sentencing decision.” The Supreme Court has held that a “sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has reasoned a basis for exercising his own legal decision-making authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). However, this court has emphasized that a district court “need not recite” the § 3553 factors when it imposes a sentence. Unit ed States v. Hernandez-Fierros, 453 F.3d 309, 312 (6th Cir.2006) (internal quotation marks omitted). “[T]he crucial question is whether the record makes clear that the sentencing judge listened to each argument, considered the supporting evidence, was fully aware of the defendant’s circumstances and took them into account in sentencing him.” United States v. Wallace, 597 F.3d 794, 804 (6th Cir.2010) (internal quotation marks omitted). The record clearly indicates that the sentencing judge took Denny’s claims under consideration. Indeed, the court found some of his arguments persuasive and adjusted both the offense level and"
},
{
"docid": "22398109",
"title": "",
"text": "responsibility for his actions. In response to Smalls’ 2008 motion for reduction of sentence, the district court reduced Smalls’ sentence to the top of the amended guideline range. The court’s decision, in response to Smalls’ most recent § 3582(c)(2) motion, to select a sentence at the top of the new guideline range suggests that the same considerations that motivated the court in the first instance continue to justify a top-of-guidelines sentence. We therefore conclude that the facts of Smalls’ case do not rebut the Legree presumption that the district court considered any relevant factors before it. C. Finally, Smalls contends Legree is no longer good law because the Supreme Court’s decisions in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Dillon v. United States undermine its reasoning. 1. In Gall, the Court clarified the obligations of a sentencing court in the wake of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which held the Sentencing Guidelines advisory. The Court concluded that an out-of-guidelines sentence need not be justified by “extraordinary” circumstances, but that, whether imposing a within-guidelines sentence or not, the sentencing court must consider the 18 U.S.C. § 3553(a) factors and “make an individualized assessment based on the facts presented.” Gall, 552 U.S. at 47, 49-50, 128 S.Ct. 586. Further, the sentencing court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id. at 50, 128 S.Ct. 586. Though Gall makes clear that a sentencing court must explain its reasoning when initially sentencing a defendant, it says nothing about § 3582(c)(2) proceedings. Moreover, in indicating that sentencing courts must adequately explain their chosen sentences, the Gall Court relied on Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). See Gall, 552 U.S. at 50, 128 S.Ct. 586; Rita, 551 U.S. at 356, 127 S.Ct. 2456 (“The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for"
},
{
"docid": "22398110",
"title": "",
"text": "out-of-guidelines sentence need not be justified by “extraordinary” circumstances, but that, whether imposing a within-guidelines sentence or not, the sentencing court must consider the 18 U.S.C. § 3553(a) factors and “make an individualized assessment based on the facts presented.” Gall, 552 U.S. at 47, 49-50, 128 S.Ct. 586. Further, the sentencing court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id. at 50, 128 S.Ct. 586. Though Gall makes clear that a sentencing court must explain its reasoning when initially sentencing a defendant, it says nothing about § 3582(c)(2) proceedings. Moreover, in indicating that sentencing courts must adequately explain their chosen sentences, the Gall Court relied on Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). See Gall, 552 U.S. at 50, 128 S.Ct. 586; Rita, 551 U.S. at 356, 127 S.Ct. 2456 (“The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.”). And in Rita, the Supreme Court rooted the requirement that a district court explain its reasoning in 18 U.S.C. § 3553(c), a provision that does not apply to § 3582(c)(2) proceedings. Rita, 551 U.S. at 356-57, 127 S.Ct. 2456; see 18 U.S.C. § 3553(c) (requiring the court, “at the time of sentencing,” to “state in open court the reasons for its imposition of the particular sentence” (emphasis added)); United States v. Evans, 587 F.3d 667, 672 (5th Cir.2009) (“By its very terms, [§ 3553(c) ] applies at the time of sentencing, not at the time of sentence modification”). Dillon, which the Court issued three years after Gall, further undermines Smalls’ argument that Gall extends to § 3582(c)(2) proceedings. The question in Dillon was whether Booker rendered advisory a policy statement governing § 3582(c)(2) proceedings, which provides that, except in limited circumstances, a court cannot reduce a defendant’s sentence below the minimum of the amended guideline range. See U.S.S.G. § lB1.10(b)(2). The Court held that Booker did not render the"
},
{
"docid": "22665356",
"title": "",
"text": "judicial proceedings.” Id. (internal quotation marks omitted). Mondragon-Santiago concedes that his issue claiming that he was convicted and sentenced under the wrong statutory subsection should be reviewed for plain error. III. DISCUSSION A. Procedural Reasonableness Mondragon-Santiago argues that his sentence is procedurally unreasonable because the district court did not adequately explain it. Congress requires the sentencing court to state “the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). While sentences within the Guidelines require “little explanation,” Mares, 402 F.3d at 519; see also Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007), more is required if the parties present legitimate reasons to depart from the Guidelines: “Where the defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence ... the judge will normally go further and explain why he has rejected those arguments.” Rita, 127 S.Ct. at 2468. The district court’s explanation “allow[s] for meaningful appellate review and ... promotefs] the perception of fair sentencing.” Gall, 128 S.Ct. at 597. Mondragon-Santiago claims that he presented arguments to the district court under § 3553(a) to justify a downward departure, but the court ignored them. The government responds that the district court considered the defendant’s arguments and rejected them, noting the nature of his previous conviction for aggravated assault with a deadly weapon, and recognizing the defendant’s family situation. The district court listened to the arguments and asked questions of defense counsel and the defendant, but the court did not directly address the arguments before reciting the Guidelines calculation and range and choosing a sentence within that range. In fact, the district court did not mention any § 3553(a) factors at all. A survey of recent cases on this topic illustrates the inadequacy of the district court’s explanation. In Rita, the district court acknowledged that the defendant was requesting a downward departure under § 3553(a) and summarized the defendant’s arguments. 127 S.Ct. at 2461. After hearing the government’s response, the court “concluded that he was ‘unable to find that the [report’s recommended] sentencing guideline range ... is an inappropriate guideline range"
},
{
"docid": "22634485",
"title": "",
"text": "by applying the two-level enhancement under U.S.S.G. § 2G2.1(b)(2)(A). Ill Stoterau next challenges the overall reasonableness of his term of imprisonment. Appellate courts must employ a two-step process when reviewing a sentence for reasonableness. See Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). “[We] must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence....” Id. “Assuming that the district court’s sentencing decision is proce durally sound,” we “then consider the substantive reasonableness of the sentence imposed.” Id. When conducting substantive reasonableness review, we “take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. We review the reasonableness of the district court’s sentencing decision for abuse of discretion. Id. That we “might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id. Stoterau raises both procedural and substantive objections to his sentence. He first contends that the district court did not adequately consider the § 3553(a) factors. According to Stoterau, the district court merely engaged in a rote recitation of § 3553(a) and thereby violated the Supreme Court’s admonishment that “[t]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, — U.S. ———, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). While district courts are required to “state in open court the reasons for [their] imposition of the particular sentence,” 18 U.S.C. § 3553(c), this obligation does “not necessarily require lengthy explanation.” Rita, 127 S.Ct. at 2468. “Circumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other congressional mandates)"
},
{
"docid": "22395370",
"title": "",
"text": "3583(b), (e)(3). Thus, the twenty-four-month revocation sentence imposed by the district court did not exceed its statutory bounds. A district court abuses its discretion in imposing a revocation sentence if the sentence is unreasonable. United States v. Bear Robe, 521 F.3d 909, 910-11 (8th Cir.2008) (citing United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005) (same standard of reasonableness applies to revocation hearings as to initial sentencing proceedings)). A sentence is procedurally unreasonable if the district court, inter alia, “fail[ed] to consider the § 3553(a) factors, ... or fail[ed] to adequately explain the chosen sentence.” United States v. Robinson, 516 F.3d 716, 717 (8th Cir.2008) (quoting Gall v. United States, - U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)); see also United States v. Ellis, 525 F.3d 960, 964 (10th Cir.2008). The § 3553(a) factors relevant to the imposition of a revocation sentence and which the district court must consider are set forth in § 3583(e). United States v. Franklin, 397 F.3d 604, 606 n. 3 (8th Cir.2005). A sentence within the Guidelines range is accorded a presumption of substantive reasonableness on appeal. Robinson, 516 F.3d at 717. Perkins argues that the district court failed to properly consider and articulate the relevant § 3553(a) factors, including the Chapter 7 policy statements in the Guidelines. A district court is not required to make specific findings; all that is generally required to satisfy the appellate court is evidence that the district court was aware of the relevant factors. Franklin, 397 F.3d at 606-07; see also Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007) (a district court is not required to provide a “full opinion in every case,” but must “set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority”). In determining whether a district court has considered the relevant factors, the context for the appellate court’s review is the entire sentencing record, not merely the district court’s statements at the hearing. See Rita, 127 S.Ct."
},
{
"docid": "22820283",
"title": "",
"text": "of review. A. Standard of review Criminal sentences must be both procedurally and substantively reasonable. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Challenges to the reasonableness of a sentence are reviewed under the deferential abuse-of-discretion standard. United States v. Novales, 589 F.3d 310, 314 (6th Cir.2009). We “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) fac tors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51, 128 S.Ct. 586. The district court’s legal interpretation of the Guidelines are reviewed de novo, but its factual findings will not be set aside unless they are clearly erroneous. United States v. Bolds, 511 F.3d 568, 579 (6th Cir.2007). “Although the district court need not explicitly reference each of the § 3553(a) factors, there must be sufficient evidence in the record to affirmatively demonstrate that the court gave each of them consideration.” United States v. Battaglia, 624 F.3d 348, 351 (6th Cir.2010) (citation omitted). A sentencing explanation is adequate if it allows for meaningful appellate review, Gall, 552 U.S. at 50, 128 S.Ct. 586, which is accomplished by “settling] forth enough [of a statement of reasons] to satisfy the appellate court that [the sentencing judge] has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). The “sentencing judge is not required to explicitly address every mitigating argument that a defendant makes, particularly when those arguments are raised only in passing.” United States v. Madden, 515 F.3d 601, 611 (6th Cir.2008). For sentencing purposes, the Supreme Court has made clear that “[t]he appropriateness of brevity or length, conciseness or detail, ... depends upon circumstances” that are left “to the judge’s own professional judgment.” Rita, 551 U.S. at 356, 127 S.Ct. 2456. If the sentence is deemed procedurally"
},
{
"docid": "23704797",
"title": "",
"text": "five million dollars in damages; Paxton claimed that his lawyers calculated this figure. The restitution statement, presumably, could have been used to impeach Paxton’s statement that he had not quantified his damages. Mere impeachment evidence, however, is not sufficient to warrant a new trial. See id. Moreover, Paxton’s testimony was not central to Hey’s convictions, which were supported by the testimony of Poucher, Pike, and the various neighborhood eyewitnesses. Indeed, Paxton was face down during most of the incident and, accordingly, did not give any testimony that would have aided in Hey’s convictions for perjury or obstruction of justice. Thus, the district court did not abuse its discretion in denying Hey’s Rule 33 motion. VII. Carson challenges the district court’s sentence of 33 months imprisonment. We review a district court’s sentencing determination for reasonableness, using a deferential abuse-of-discretion standard. Gall v. United States, — U.S. —, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007); see also Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007). Further, we may apply a re-buttable presumption of reasonableness to sentences within the Guidelines range. Rita, 127 S.Ct. at 2462. Reasonableness review has two components: procedural and substantive. Gall, 128 S.Ct. at 597; United States v. Brown, 501 F.3d 722, 724 (6th Cir.2007). A sentence is procedurally unreasonable if a district court commits a significant procedural error, “such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 128 S.Ct. at 597. A sentence is substantively unreasonable, according to this court, if “the district court selected the sentence arbitrarily, based the sentence on impermissible factors, failed to consider pertinent § 3553(a) factors, or gave an unreasonable amount of weight to any pertinent factor.” United States v. Smith, 510 F.3d 603, 609 (6th Cir.2007) (citing Brown, 501 F.3d at 724). The district court determined that Carson’s base offense level was 20, resulting in an advisory Guidelines range of 33"
}
] |
809643 | As to the “exigent circumstances” exception, the test for the presence of such circumstances is “whether the police had ‘an urgent need’ or ‘an immediate major crisis in the performance of duty affording neither time nor opportunity to apply to a magistrate.’ ” United States v. Johnson, 802 F.2d 1459, 1461 (D.C.Cir.1986) (quoting Dorman v. United States, 435 F.2d 385, 391 (D.C.Cir.1970) (en banc)). This is an objective standard, focusing on “what a reasonable, experienced police officer would believe,” and this assessment is made according to the totality of the circumstances. United States v. Goree, 365 F.3d 1086, 1090 (D.C.Cir.2004) (citation omitted). And, the government must have had probable cause for their actions to rely on the exigent circumstances exception. REDACTED Here, looking at the totality of the circumstances, the Court concludes that there was an urgent need to search the plaintiffs van and that there was probable cause to do so. Especially persuasive in this regard are the unmarked containers of liquid observed inside the van, which could have given the impression that there were explosives or other dangerous chemicals inside. From their vantage points when they looked into the van, the officers could not see the bottom of the glass jars, and thus could not tell whether wires or other devices might be connected to them. Fed. Defs.’ Mem., Ex. 2 (King Deck); see also United States v. Duran, 884 F.Supp. 552, 556 (D.D.C.1995) (quoting United States v. Lindsey, 877 | [
{
"docid": "21593552",
"title": "",
"text": "bathroom,” the court reasoned further, “they were permitted to seize [the] incriminating evidence in plain view” on the bathroom floor. Id. at 13. Next, the court held that although Halli-man’s verbal consent to search the remainder of the room was involuntary, the subsequent, emergency search warrant cured any legal defects in the consent. See id. at-13-16. Thus, the court concluded, “the evidence found in the coat rack area, as well as the evidence seized pursuant to the emergency warrant, is admissible under the so-called ‘independent source’ doctrine.” Id. at 16. We agree with the court’s conclusions. 1. Exigent Circumstances The Fourth Amendment protects against “unreasonable searches and seizures.” U.S. Const, amend. IV. A warrantless entry into a hotel room is “ ‘per se unreasonable in the absence of some one of a number of well defined “exigent circumstances.” ’ ” United States v. Timberlake, 896 F.2d 592, 596 (D.C.Cir.1990) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 478, 91 S.Ct. 2022, 2044, 29 L.Ed.2d 564 (1971)). Exigent circumstances exist where “evidence ... may be lost or destroyed if a search is delayed.” United States v. Johnson, 802 F.2d 1459, 1462 (D.C.Cir.1986). Police officers relying on this exception to the warrant requirement -must have probable cause to search a room, United States v. Socey, 846 F.2d 1439, 1444 n. 5 (D.C.Cir.), cert. denied, 488 U.S. 858, 109 S.Ct. 152, 102 L.Ed.2d 123 (1988), and “an objectively reasonable basis for concluding that the destruction of evidence is imminent,” id. at 1445. The district court held that each of these requirements was met, and Halliman does not challenge these conclusions. Instead, Halliman contends that the police unlawfully entered room 900 because they unreasonably failed to obtain a warrant after Haynie called the station and then deliberately manufactured the exigent circumstances on which they relied to justify their entry. We reject Halliman’s contentions. Halliman argues that the police created the exigent circumstances in room 900 by knocking on the doors to rooms 903 and 918 and loudly announcing their presence while Sergeant Neill was attempting to “interview” the occupant of room 900. See, e.g.,"
}
] | [
{
"docid": "16886708",
"title": "",
"text": "Six Hundred Thirty-Nine Thousand Five Hundred and Fifty-Eight Dollars, 955 F.2d at 718. Here, the federal defendants lacked probable cause to believe that the plaintiffs van contained any explosives once no explosives were found on the plaintiffs person, and thus the absence of exigent circumstances is fatal to any qualified immunity claim as to the warrantless search of the vehicle. Neither side has made any factual representation which, if true, would suggest that the federal defendants had a reasonable basis for searching the plaintiffs van when they did, nor do the defendants explain why the investigation of the plaintiff needed to continue after it was determined that he was unarmed. The federal defendants had no reason to suspect that the plaintiff was carrying éxplo-sives on his person once the HDU completed its testing of the plaintiffs costume, and nothing occurred thereafter that gave the USCP or the FBI defendants cause to believe that the plaintiffs vehicle contained explosives. See Preston v. United States, 376 U.S. 364, 367-68, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) (holding that a warrantless search of a vehicle is not justified when the defendant is already in police custody); cf. United States v. Maiden, 870 F.Supp. 359, 361 (D.D.C.1994) (finding that “once [the defendant] was arrested and handcuffed, there were no longer any exigent circumstances that necessitated” a warrantless search). The federal defendants’ contentions notwithstanding, the fact that the vehicle was parked “less than two blocks from the Hart Senate Office Building” is plainly not enough, standing alone, to justify a search of the van’s interior, Def.’s Mem. at 13, and this was especially so when a canine inspection of the exterior of the van produced negative results, Am. Compl. ¶ 23. Thus, a reasonably competent officer should certainly have known that searching the interior of the van would violate the plaintiffs Fourth Amendment rights. See Fernandors v. District of Columbia, 382 F.Supp.2d 63, 70-71 (“An official is not shielded from liability where he could be expected to know that certain conduct would violate ... constitutional rights.”) (internal quotation marks and citation omitted). Accordingly, the Court"
},
{
"docid": "16886706",
"title": "",
"text": "the [Hart] Senate Building[,] combined with the ongoing investigation of [the] Plaintiff, at a minimum meets the standards set out ... to act reasonably and to protect the lives of others who would be in grave danger.” Def.’s Mem. at 13. The federal defendants, however, had no reason to believe that anyone was in grave danger at the time the van was searched. Both sides agree that the federal defendants did not obtain information regarding the van’s whereabouts until after the HDU had tested the plaintiffs costume and determined that the plaintiff was not carrying explosives, Am. Compl. ¶ 23; Def.’s Mem. at 13, and from the facts alleged, it is clear that once the search of the plaintiffs person revealed no explosives, the officers involved could not reasonably have believed that exigent circumstances “support[ed] the need for an immediate search” of the plaintiffs van. United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). In Chadwick, the Supreme Court held that the warrantless search of an individual’s foot locker, conducted more than an hour after his arrest, was not “justified by any ... exigency,” even though narcotics agents had probable cause to believe that the foot locker contained contraband. Id. Accordingly, “warrantless searches of property ... seized at the time of an arrest cannot be justified ... if the search is remote in time or place from the arrest or no exigency exists.” Id. (internal quotation marks and citation omitted). The District of Columbia Circuit applied Chadwick in United States v. Six Hundred Thirty-Nine Thousand Five Hundred and Fifty-Eight Dollars, 955 F.2d 712 (D.C.Cir.1992), stating that even if “an immediate search without a warrant could have been justified” in a given situation, a warrantless search cannot be sustained “after the exigency ha[s] ended.” 955 F.2d at 718. In relying on Chadwick, the Circuit Court distinguished a later ease, California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), which had held that “the automobile exception permitted police, when they have probable cause, to search containers in a car without a warrant.”"
},
{
"docid": "4909190",
"title": "",
"text": "a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative. McDonald v. United States, 335 U.S. 451, 455-56, 69 S.Ct. 191, 93 L.Ed. 153 (1948); see also Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.... The right of officers to thrust themselves into a home is ... a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent”). Defendants contend that one recognized exception to this rule — the exigent-circumstances exception — justifies the warrantless entry here. See Dist. Mot. at 17-22. This exception authorizes the warrantless entry of premises where the police have “an urgent need or an immediate major crisis in the performance of duty affording neither time nor opportunity to apply to a magistrate” for a warrant. United States v. Johnson, 802 F.2d 1459, 1461 (D.C.Cir.1986) (brackets, internal quotation marks, and citations omitted). For example, police “may make a warrant-less entry onto private property ... to prevent the imminent destruction of evidence, or to engage in hot pursuit of a fleeing suspect.” Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (internal quotation marks and citations omitted)."
},
{
"docid": "6851719",
"title": "",
"text": "there were exigent circumstances sufficient to justify a warrantless entry, the fundamental question is whether the law enforcement officers had reason to believe there was an urgent need that justified such an entry. We have generally begun our review of this question by stating that the pertinent factors include (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect “is reasonably believed to be armed”; (3) “a clear showing of probable cause ... to believe that the suspect committed the crime”; (4) “strong reason to believe that the suspect is in the premises being entered”; (5) “a likelihood that the suspect will escape if not swiftly apprehended”; and (6) the peaceful circumstances of the entry. United States v. Reed, 572 F.2d 412, 424 (2d Cir.) (quoting Dorman v. United States, 435 F.2d 385, 392-93 (D.C.Cir.1970) (en banc)), cert. denied, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259 (1978); United States v. Crespo, 834 F.2d at 270; United States v. Martinez-Gonzalez, 686 F.2d at 100; United States v. Campbell, 581 F.2d at 26. We have made clear that this list of factors “is illustrative, not exclusive; other factors may be relevant,” United States v. Martinez-Gonzalez, 686 F.2d at 100, and that “[t]he presence or absence of any one factor is not conclusive; rather, the essential question is whether there was ‘urgent need’ that ‘justified]’ the warrantless entry,” United States v. Crespo, 834 F.2d at 270 (quoting Dorman v. United States, 435 F.2d at 391). For example, as the Supreme Court has observed, “no exigency is created simply because there is probable cause to believe that a serious crime has been committed.” Welsh v. Wisconsin, 466 U.S. at 753, 104 S.Ct. at 2099. In each case in which we have concluded that the government established exigent circumstances justifying a warrantless entry, the record has included evidence of facts that made it objectively reasonable for the law enforcement officers to believe that time was of the essence. These have included a reasonable basis for fearing, for example, an imminent attempt to"
},
{
"docid": "16886707",
"title": "",
"text": "conducted more than an hour after his arrest, was not “justified by any ... exigency,” even though narcotics agents had probable cause to believe that the foot locker contained contraband. Id. Accordingly, “warrantless searches of property ... seized at the time of an arrest cannot be justified ... if the search is remote in time or place from the arrest or no exigency exists.” Id. (internal quotation marks and citation omitted). The District of Columbia Circuit applied Chadwick in United States v. Six Hundred Thirty-Nine Thousand Five Hundred and Fifty-Eight Dollars, 955 F.2d 712 (D.C.Cir.1992), stating that even if “an immediate search without a warrant could have been justified” in a given situation, a warrantless search cannot be sustained “after the exigency ha[s] ended.” 955 F.2d at 718. In relying on Chadwick, the Circuit Court distinguished a later ease, California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), which had held that “the automobile exception permitted police, when they have probable cause, to search containers in a car without a warrant.” Six Hundred Thirty-Nine Thousand Five Hundred and Fifty-Eight Dollars, 955 F.2d at 718. Here, the federal defendants lacked probable cause to believe that the plaintiffs van contained any explosives once no explosives were found on the plaintiffs person, and thus the absence of exigent circumstances is fatal to any qualified immunity claim as to the warrantless search of the vehicle. Neither side has made any factual representation which, if true, would suggest that the federal defendants had a reasonable basis for searching the plaintiffs van when they did, nor do the defendants explain why the investigation of the plaintiff needed to continue after it was determined that he was unarmed. The federal defendants had no reason to suspect that the plaintiff was carrying éxplo-sives on his person once the HDU completed its testing of the plaintiffs costume, and nothing occurred thereafter that gave the USCP or the FBI defendants cause to believe that the plaintiffs vehicle contained explosives. See Preston v. United States, 376 U.S. 364, 367-68, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) (holding"
},
{
"docid": "11497331",
"title": "",
"text": "prior to this incident. The officers did not know these things at the time they entered the home; what matters is their reasonable belief that unlawful- activity was in progress at the time of the entry and arrest. See Tibolt, 72 F.3d at 971; Murdock, 54 F.3d at 1444. Of course, had the defendant immediately identified himself as the owner of the house, the totality of the circumstances might have been quite different. But the fact that he failed to do so, when the officers could reasonably expect that the true homeowner would have, adds rather than detracts from the calculus of probable cause. B Probable cause alone does not justify the warrantless entry of a home. There must also be some exception to the warrant requirement. See, e.g., Dawkins, 17 F.3d at 403; United States v. McCraw, 920 F.2d 224, 228 (4th Cir.1990). The court below concluded that the entry was justified under the “hot pursuit” exception suggested in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). On appeal, the government does not press the “hot pursuit” exception, and instead argues that the “exigent circumstances” exception, recognized by this court in Dorman v. United States, 435 F.2d 385 (D.C.Cir.1970) (en banc), justifies the entry and arrest. See also United States v. Mason, 966 F.2d 1488, 1492 (D.C.Cir.1992). We agree and affirm the district court’s judgment on that basis, without addressing the “hot pursuit” exception. See United States v. Abdul-Saboor, 85 F.3d 664, 666 (D.C.Cir.1996). “Hot pursuit” is, of course, just one form of “exigent circumstance.” See Hayden, 387 U.S. at 298, 87 S.Ct. 1642 (holding Fhaf “under uridiia nf this pasp the exigencies of the situation made” entry without a warrant “imperative”); Dorman, 435 F.2d at 391. The Supreme Court also has recognized that “[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (internal citations and quotations omitted); see Minnesota v. Olson, 495 U.S. 91,"
},
{
"docid": "12318433",
"title": "",
"text": "the warrant requirement applies when “the exigencies of [a] situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable.” King, 131 S.Ct. at 1856 (internal quotation marks omitted) (quoting Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)). “One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury.” Brigham City, 547 U.S. at 403, 126 S.Ct. 1943; see also Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (“[A] warrantless intrusion may be justified by ... the risk of danger to the police or to other persons inside or outside [a] dwelling.”). Another exigency is the need to prevent the imminent destruction of evidence. See King, 131 S.Ct. at 1856; In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 157, 168 (2d Cir.2008). The common theme through these cases is the existence of a true emergency. In determining whether exigent circumstances exist, “[t]he core question is whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer, to believe that there was an urgent need to render aid or take action.” Klump, 536 F.3d at 117-18 (citation and internal quotation marks omitted); see also MacDonald, 916 F.2d at 769 (same). This test “is an objective one that turns on the totality of the circumstances confronting law enforcement agents in the particular case.” Klump, 536 F.3d at 117 (alteration omitted) (quoting MacDonald, 916 F.2d at 769). Applying this standard here, we find that the circumstances facing the officers at the time they searched the bedroom were not sufficiently exigent to fall within this narrow exception, and that the district court’s conclusion to the contrary was clearly erroneous. According to the officers’ testimony, after rousing Simmons from his bed in the middle of the night, they removed him from his bedroom, placed him against the wall in the common hallway, and made sure that he had nothing in his possession that could harm them."
},
{
"docid": "20877324",
"title": "",
"text": "jointly for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. On January 30, 1992, the district court denied the new trial motion, reason ing that because the newly discovered evidence of Hernandez’s criminal history was merely cumulative of extensive impeachment material known by the defense at the time of trial, admission of the evidence would not likely have resulted in the defendants’ acquittal. A. Denial of the Motion to Suppress It is well-settled that the warrant requirement of the Fourth Amendment must yield in those situations in which exigent circumstances require law enforcement officers to act without delay. See, e.g., Payton v. New York, 445 U.S. 573, 585-86, 100 S.Ct. 1371, 1379-80, 63 L.Ed.2d 639 (1980). “A district court’s determination as to whether exigent circumstances existed is fact-specific, and will not be reversed unless clearly erroneous.” United States v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990) (en banc), cert. denied, — U.S. —, 111 S.Ct. 1071, 112 L.Ed.2d 1177 (1991). “[T]he test for determining whether a warrantless entry is justified by exigent circumstances is an objective one that turns on the district court’s examination of the totality of circumstances confronting law enforcement agents in the particular case.” Id. “The essential question in determining whether exigent circumstances justified a warrantless entry is whether law enforcement agents were confronted by an ‘urgent need’ to render aid or take action.” Id. (quoting Dorman v. United States, 435 F.2d 385, 391 (D.C.Cir.1970) (en banc)). We have adopted six factors as guideposts for determining the existence of exigent circumstances: (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect “is reasonably believed to be armed”; (3) “a clear showing of probable cause ... to believe that the suspect committed the crime”; (4) “strong reason to believe that the suspect is in the premises being entered”; (5) “a likelihood that the suspect will escape if not swiftly apprehended”; and (6) the peaceful circumstances of the entry. MacDonald, 916 F.2d at 769-70 (quoting Dorman, 435 F.2d at 392-93). We have"
},
{
"docid": "11497334",
"title": "",
"text": "circumstances is whether police had an ‘urgent need’ or ‘an immediate major crisis in the performance of duty afford[ing] neither time nor opportunity to apply to a magistrate.’ ” United States v. (James) Johnson, 802 F.2d 1459, 1461 (D.C.Cir.1986) (quoting Dorman, 435 F.2d at 391). Other circuits have taken the sanie view. See, e.g., United States v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990) (en banc) (“The essential question in determining whether exigent circumstances justified a warrantless entry is whether law enforcement agents were confronted by an ‘urgent need’ to render aid or take action.”) (citing Dorman, 435 F.2d at 391). The government bears the “heavy burden” of proving such “urgent need.” See Welsh, 466 U.S. at 749-50, 104 S.Ct. 2091; Dorman, 435 F.2d at 392. Like the determination of probable cause, the question of whether there were “exigent circumstances” is judged according to the totality of the circumstances. See Socey, 846 F.2d at 1446; (James) Johnson, 802 F.2d at 1462. And like the standard for probable cause, the standard for exigent circumstances is an objective one, focusing “on what a reasonable, experienced police officer would believe.” Timberlake, 896 F.2d at 596; Socey, 846 F.2d at 1446-47. The government’s claim of exigency in this case rests on the officers’ belief that the defendant was engaged in an ongoing burglary attempt that could have endangered the occupants of the house if the police had paused to obtain a warrant.. At the time he pursued the defendant into the house, Officer Riddle “believed that someone was burglarizing the house with the intent to either steal an item or injure someone within the house.” App. at 43. As we have held above, that belief was objectively reasonable. Numerous other circuits have found that probable cause to believe a burglary is in progress constitutes exigent circumstances sufficient to permit warrantless entry. See, e.g., Tibolt, 72 F.3d at 970; Murdock, 54 F.3d at 1442; (Emil) Johnson, 9 F.3d at 509-10; Reardon, 811 F.2d at 1025, 1029-30; Dart, 747 F.2d at 267; United States v. Singer, 687 F.2d 1135, 1144 (8th Cir.1982); Estese, 479 F.2d at"
},
{
"docid": "9637565",
"title": "",
"text": "nor is there any evidence of suicidal behavior or talk. Id. at 12. Plaintiff also asserts that there is no evidence that Mr. Davis was doing anything that was an immediate threat to others’ safety. Id. Plaintiff bases these assertions upon her contention that there is no evidence either that Mr. Davis left his apartment between the two Code 40 calls or that he threw anything out of the window after he retreated to his apartment. Id. Moreover, plaintiff argues that because there were no exigent circumstances, the officers should have obtained a warrant for Mr. Davis’ seizure pursuant to New York Mental Hygiene Law § 9.43 if they believed that he was mentally ill. See id. at 8. It is well-settled that the Fourth Amendment’s warrant requirement must yield when exigent circumstances require that, law enforcement officers act without delay. United States v. Gordils, 982 F.2d 64, 69 (2d Cir.1992) (citing Payton v. New York, 445 U.S. 573, 585-86, 100 S.Ct. 1371, 1379-80, 63 L.Ed.2d 639 (1980)). “ ‘[T]he test for determining whether a warrantless entry is justified by exigent circumstances is an objective one that turns on the district court’s examination of the totality of circumstances confronting law enforcement agents in the particular case.’ ” Gordils, 982 F.2d at 69 (emphasis added) (quoting United States v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990) (en banc), cert. denied, 498 U.S. 1119, 111 S.Ct. 1071, 112 L.Ed.2d 1177 (1991)). In making this determination, “ ‘[t]he essential question ... is whether law enforcement agents were confronted by an “urgent need” to render aid or take action.’ ” Gordils, 982 F.2d at 69 (quoting MacDonald (quoting in turn Dorman v. United States, 435 F.2d 385, 391 (D.C.Cir.1970) (en banc))). In Gordils, the Second Circuit set forth the following six factors for courts to use as guidelines for determining whether or not exigent circumstances exist: (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect “is reasonably believed to be armed”; (3) “a clear showing of probable cause ... to believe that"
},
{
"docid": "12078106",
"title": "",
"text": "officer stationed in the alley at the rear of the building observed appellant dropping a brown paper bag from the second floor apartment to a lower portion of the roof. Despite the officer’s instruction to appellant to “halt,” Johnson withdrew from the window and closed it. The officer, using his hand-held radio, informed the search team inside the store of his observations. Four members of the team thereupon forced open the door to 807A Florida Avenue, climbed the stairway, forced open a second door, and entered the apartment. They searched the apartment and the area below the window, seizing several bags from the roof and from cubbyholes located between the outside wall of the building and two air conditioning units. The bags were found to contain narcotics, narcotics paraphernalia, and a firearm, and all of the seized items were introduced over objection at Johnson’s trial. Warrantless entry of premises is justified only when exigent circumstances make an immediate search imperative. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948). The burden is on the prosecution to demonstrate that exigent circumstances were present. United States v. Free, 437 F.2d 631, 633 (D.C.Cir.1970). The test for exigent circumstances is whether the police had “an urgent need” or “ ‘an immediate major crisis in the performance of duty affordpng] neither time nor opportunity to apply to a magistrate.’ ” Dorman v. United States, 435 F.2d 385, 391 (D.C.Cir.1970) (quoting District of Columbia v. Little, 178 F.2d 13, 17 (D.C.Cir. 1949)). Clearly, exigent circumstances were present in this case. The need to preserve evidence that may be lost or destroyed if a search is delayed is and has long been recognized as an exigent circumstance. In the instant case, the officers were engaged in a search for narcotics. It is commonly known that narcotics can be easily and quickly destroyed while a search is progressing, and that “efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged"
},
{
"docid": "12078107",
"title": "",
"text": "(1971); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948). The burden is on the prosecution to demonstrate that exigent circumstances were present. United States v. Free, 437 F.2d 631, 633 (D.C.Cir.1970). The test for exigent circumstances is whether the police had “an urgent need” or “ ‘an immediate major crisis in the performance of duty affordpng] neither time nor opportunity to apply to a magistrate.’ ” Dorman v. United States, 435 F.2d 385, 391 (D.C.Cir.1970) (quoting District of Columbia v. Little, 178 F.2d 13, 17 (D.C.Cir. 1949)). Clearly, exigent circumstances were present in this case. The need to preserve evidence that may be lost or destroyed if a search is delayed is and has long been recognized as an exigent circumstance. In the instant case, the officers were engaged in a search for narcotics. It is commonly known that narcotics can be easily and quickly destroyed while a search is progressing, and that “efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.” United States v. Rubin, 474 F.2d 262, 268-69 (3d Cir.), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973). Accord, United States v. Manning, 448 F.2d 992, 998-99 (2d Cir.) (en banc), cert. denied, 404 U.S. 995, 92 S.Ct. 541, 30 L.Ed.2d 548 (1971). This general experience was buttressed in the instant case by appellant’s highly unusual and suspicious action of dropping a paper bag from his window to the roof below. To any even minimally experienced police officer this provided evidence that appellant was aware of the police presence and was seeking to dispose of contraband. It is only common sense to conclude that a suspect in this situation could and would dispose of remaining narcotics in the bathroom of the apartment or through some other means if given the time to do so. In United States v. Davis, 461 F.2d 1026 (3d Cir.1972), the Third Circuit was presented with similar facts. In that case, a bag of heroin was thrown from an apartment window as federal"
},
{
"docid": "23501354",
"title": "",
"text": "such a warrantless entry will not be overturned unless it is “clearly erroneous.” MacDonald, 916 F.2d at 769; Cattouse, 846 F.2d at 146. “[T]he test for determining whether a warrantless entry is justified by exigent circumstances is an objective one_” MacDonald, 916 F.2d at 769; Zabare, 871 F.2d at 291. The district court must determine, considering the totality of the circumstances of the particular case, “whether law enforcement agents were confronted by an ‘urgent need’ to render aid or take action.” MacDonald, 916 F.2d at 769 (quoting Dorman v. United States, 435 F.2d 385, 391 (D.C.Cir.1970) (en banc)); see also Miles, 889 F.2d at 383. To guide the district court’s inquiry into whether exigent circumstances exist, we have adopted the factors set forth in Dorman, 435 F.2d at 392-93. See, e.g., MacDonald, 916 F.2d at 769; United States v. Crespo, 834 F.2d 267, 270 (2d Cir.1987), cert. denied, 485 U.S. 1007, 108 S.Ct. 1471, 99 L.Ed.2d 700 (1988). As summarized in MacDonald, a district court should consider: (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect “is reasonably believed to be armed”; (3) “a clear showing of probable cause ... to believe that the suspect committed the crime”; (4) “strong reason to believe that the suspect is in the premises being entered”; (5) “a likelihood that the suspect will escape if not swiftly apprehended”; and (6) the peaceful circumstances of the entry. 916 F.2d at 769-70 (citations omitted). These factors are merely illustrative, not exhaustive, and the presence or absence of any one factor is not conclusive. Id. at 770; Cattouse, 846 F.2d at 147 (citation omitted). Applying these standards to the instant case, Judge Keenan’s finding that there were exigent circumstances justifying the warrantless entry was not clearly erroneous. The suspects were in the midst of a large scale narcotics transaction. Moreover, as the district court found, based on their own observations and on the report of the DEA informant Perez, the DEA agents clearly had probable cause to believe that Medina and Polanco participated in the"
},
{
"docid": "6851737",
"title": "",
"text": "fully support the district court’s findings. As the proof proffered at the hearing demonstrated, the law enforcement agents had probable cause to believe that the defendants had committed a narcotics trafficking offense and that contraband would be found in the apartment. Both the observations made by the surveillance officers immediately prior to the undercover purchase and those made by Agent Agee while he was inside the apartment gave rise to the law enforcement agents’ belief. The majority’s apparent position that the agents could easily have obtained a search warrant implies that probable cause existed. In any event, the defendant does not argue a lack of probable cause, and the issue seems to me to be beyond dispute. The real issue here is whether the district court erred when it determined that exigent circumstances justified the war-rantless entry. We have held that “[t]he determination of exigent circumstances turns upon whether in light of all the facts of a particular case ... an ‘urgent need’ ” sanctioned the warrantless entry. United States v. Martinez-Gonzalez, 686 F.2d 93, 100 (2d Cir. 1982) (quoting Dorman v. United States, 435 F.2d 385, 391 (D.C.Cir.1970) (en banc)). On numerous occasions, we have pointed to a list of “various factors that may be used to determine whether ‘exigent circumstances’ are present.” United States v. Reed, 572 F.2d 412, 424 (2d Cir.), cert. denied, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259 (1978) (quoting Dorman, 435 F.2d at 392-93); see also, Cattouse, 846 F.2d at 146; United States v. Crespo, 834 F.2d 267, 270 (2d Cir.1987), cert. denied, 485 U.S. 1007, 108 S.Ct. 1471, 99 L.Ed.2d 700 (1988); Martinez-Gonzalez, 686 F.2d at 100; United States v. Campbell, 581 F.2d 22, 26 (2d Cir.1978). Although the majority opinion acknowledges the factors, it concludes that “the district court’s finding that the agents ‘had urgent need to make a warrantless entry in order to prevent the destruction or loss of evidence as well as to prevent the flight of the suspects’ is clearly erroneous.” In so doing, the majority conclusion puts an entirely new gloss on the exigent circumstances exception."
},
{
"docid": "4909191",
"title": "",
"text": "to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent”). Defendants contend that one recognized exception to this rule — the exigent-circumstances exception — justifies the warrantless entry here. See Dist. Mot. at 17-22. This exception authorizes the warrantless entry of premises where the police have “an urgent need or an immediate major crisis in the performance of duty affording neither time nor opportunity to apply to a magistrate” for a warrant. United States v. Johnson, 802 F.2d 1459, 1461 (D.C.Cir.1986) (brackets, internal quotation marks, and citations omitted). For example, police “may make a warrant-less entry onto private property ... to prevent the imminent destruction of evidence, or to engage in hot pursuit of a fleeing suspect.” Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (internal quotation marks and citations omitted). The officer must have a reasonable belief that exigent circumstances actually existed. See United States v. Goree, 365 F.3d 1086, 1090 (D.C.Cir.2004). Courts have consistently cautioned that the exigent-circumstances exception should be applied guardedly and “have recognized emergencies excusing failure to procure a warrant very sparingly.” United States v. Dawkins, 17 F.3d 399, 405 (D.C.Cir.1994) (internal citations omitted); see also Dorman v. United States, 435 F.2d 385, 392 (D.C.Cir.1970) (“[t]erms like ‘exigent circumstances’ or ‘urgent need’ are useful in underscoring the heavy burden on the police to show that there was a need that could not brook the delay incident to obtaining a warrant”). Mere inconvenience in delaying entry while seeking a warrant is clearly insufficient, as to allow the exigent-circumstances doctrine to be invoked without a heightened showing of need would “ ‘allow[ ] the exception to swallow the rule.’ ” United States v. Drummond, 98 F.Supp.2d 44, 52 (D.D.C.2000) (quoting Florida v. J.L., 529 U.S. 266, 273, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)) (discussing similar concerns with respect to implications of recognizing"
},
{
"docid": "11497333",
"title": "",
"text": "100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (recognizing that warrantless entry may be justified by “the risk of danger to the police or to other persons inside or outside the dwelling”); Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (holding that a “burning building presents an exigency of sufficient proportions to render a warrantless entry ‘reasonable’ ”); see also Mason, 966 F.2d at 1492-93; Timberlake, 896 F.2d at 596. The Court has also suggested that warrantless entries are permissible to prevent the destruction of evidence, see Minnesota v. Olson, 495 U.S. at 101, 110 S.Ct. 1684; Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); see also Dawkins, 17 F.3d at 405; Timberlake, 896 F.2d at 596, or a suspect’s escape, see Olson, 495 U.S. at 100, 110 S.Ct. 1684. Although the Supreme Court has never provided a catalog of all such exigencies, see Welsh, 466 U.S. at 749, 104 S.Ct. 2091, this court has said that, at bottom, “[t]he test for exigent circumstances is whether police had an ‘urgent need’ or ‘an immediate major crisis in the performance of duty afford[ing] neither time nor opportunity to apply to a magistrate.’ ” United States v. (James) Johnson, 802 F.2d 1459, 1461 (D.C.Cir.1986) (quoting Dorman, 435 F.2d at 391). Other circuits have taken the sanie view. See, e.g., United States v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990) (en banc) (“The essential question in determining whether exigent circumstances justified a warrantless entry is whether law enforcement agents were confronted by an ‘urgent need’ to render aid or take action.”) (citing Dorman, 435 F.2d at 391). The government bears the “heavy burden” of proving such “urgent need.” See Welsh, 466 U.S. at 749-50, 104 S.Ct. 2091; Dorman, 435 F.2d at 392. Like the determination of probable cause, the question of whether there were “exigent circumstances” is judged according to the totality of the circumstances. See Socey, 846 F.2d at 1446; (James) Johnson, 802 F.2d at 1462. And like the standard for probable cause, the standard for exigent circumstances is an"
},
{
"docid": "23598042",
"title": "",
"text": "Walker, Agent Price knew that he had previously been in possession of the vehicle, and that he met the description of one of the robbers. Agent Price was also aware that Walker’s brother, himself a convicted bank robber, had picked up a man meeting the description of the other robber at the home of Walker’s mother, and had driven him to the Redick residence. With that information, it was reasonable for Agent Price to believe that one of the robbers was inside the Redick home, and he had probable cause to enter. Once inside, Redick told the officers that “Johnny Bob was the man [they were] looking for.” Finding Robertson in a bedroom, Agent Price confirmed that he matched the description they had been given. Price also noticed that Robertson was wearing pants with a distinctive stitching pattern similar to those reportedly worn by one of the robbers. With that additional information, Agent Price had probable cause to make the arrest of Robertson. Robertson additionally argues that the entry and resulting arrest violated the warrant requirement of the Fourth Amendment. In most cases, the police must obtain a warrant before they enter a dwelling to search for evidence, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), or to arrest a suspect, United States v. Prescott, 581 F.2d 1343 (9 Cir. 1978); Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (D.C.Cir.1970). The issue presented here is whether one of the exceptions to that requirement, the presence of “exigent circumstances,” justifies the officer’s conduct. Exigent circumstances are those in which a substantial risk of harm to the persons involved or to the law enforcement process would arise if the police were to delay a search until a warrant could be obtained. The need for an immediate search must be apparent to the police, and so strong as to outweigh the important protection of individual rights provided by the warrant requirement. There must be no practical way to avoid these risks"
},
{
"docid": "4909192",
"title": "",
"text": "The officer must have a reasonable belief that exigent circumstances actually existed. See United States v. Goree, 365 F.3d 1086, 1090 (D.C.Cir.2004). Courts have consistently cautioned that the exigent-circumstances exception should be applied guardedly and “have recognized emergencies excusing failure to procure a warrant very sparingly.” United States v. Dawkins, 17 F.3d 399, 405 (D.C.Cir.1994) (internal citations omitted); see also Dorman v. United States, 435 F.2d 385, 392 (D.C.Cir.1970) (“[t]erms like ‘exigent circumstances’ or ‘urgent need’ are useful in underscoring the heavy burden on the police to show that there was a need that could not brook the delay incident to obtaining a warrant”). Mere inconvenience in delaying entry while seeking a warrant is clearly insufficient, as to allow the exigent-circumstances doctrine to be invoked without a heightened showing of need would “ ‘allow[ ] the exception to swallow the rule.’ ” United States v. Drummond, 98 F.Supp.2d 44, 52 (D.D.C.2000) (quoting Florida v. J.L., 529 U.S. 266, 273, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)) (discussing similar concerns with respect to implications of recognizing additional exceptions to knock-and-announce rule). i. Dorman Factors Rather than “spelling] out a definition of ‘exigency’ with any precision,” courts in this Circuit evaluate “several nonexclusive considerations pertinent to a finding of exigency.” Dawkins, 17 F.3d at 405 (citing Dorman, 435 F.2d at 392-93). The seven Dorman factors for determining the presence of exigent circumstances include: (1) [t]hat a grave offense is involved, particularly a crime of violence; (2) [that] the suspect is reasonably believed to be armed; (3) a clear showing of probable cause; (4) a strong reason to believe that the suspect is in the dwelling; (5) the likelihood of escape if not swiftly apprehended; (6) a peaceable entry as opposed to a “breaking”; and (7) the time of entry (night or day). United States v. Lindsay, 506 F.2d 166, 171 (D.C.Cir.1974) (citing Dorman, 435 F.2d at 392-93). In applying these factors, a court’s analysis must “be shaped by the realities of the situation presented by the record.” United States v. Robinson, 533 F.2d 578, 581 (D.C.Cir.1976). These factors are to be applied"
},
{
"docid": "23267404",
"title": "",
"text": "Entry — Anthony’s § 1983 Claim Against Officers Collegio and Migliaro Individually Section 1983 exposes any person acting under color of law to liability for money damages if he or she “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.” 42 U.S.C. § 1983. Anthony raises a § 1983 claim against Officers Collegio and Migliaro in their individual capacities, based on the allegedly unconstitutional warrantless entry into Wright’s apartment. The Fourth Amendment protects individuals against unreasonable searches and seizures. See U.S. Const, amend. IV. To be reasonable under the Fourth Amendment, a search of a home must either be conducted pursuant to a warrant or meet an exception to the warrant requirement. See Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). Among the recognized exceptions to the warrant requirement is the presence of exigent circumstances: The warrant requirement of the Fourth Amendment guarantees the fundamental right to be free from government intrusion into the privacy of one’s home. It is well-settled, however, that the warrant requirement must yield in those situations where exigent circumstances demand that law enforcement agents act without delay.... The essential question in determining whether exigent circumstances justified a warrantless entry is whether law enforcement agents were confronted by an “urgent need” to render aid or take action. United States v. MacDonald, 916 F.2d 766, 769 (2d Cir.1990) (in banc) (citations omitted) (quoting Dorman v. United States, 435 F.2d 385, 391 (D.C.Cir.1970) (in banc)). In granting summary judgment for defendants on this claim, the district court found that no reasonable jury could conclude other than that exigent circumstances existed sufficient to justify the warrantless entry. Anthony, 2001 WL 741743, at *4 (“The issue of whether exigent circumstances existed is quickly resolved. Because it was reasonable for the officers to believe that there was an armed man in Wright’s apartment who was committing a violent crime against the caller, exigent circumstances justified the officers’ warrantless entry"
},
{
"docid": "20877325",
"title": "",
"text": "justified by exigent circumstances is an objective one that turns on the district court’s examination of the totality of circumstances confronting law enforcement agents in the particular case.” Id. “The essential question in determining whether exigent circumstances justified a warrantless entry is whether law enforcement agents were confronted by an ‘urgent need’ to render aid or take action.” Id. (quoting Dorman v. United States, 435 F.2d 385, 391 (D.C.Cir.1970) (en banc)). We have adopted six factors as guideposts for determining the existence of exigent circumstances: (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect “is reasonably believed to be armed”; (3) “a clear showing of probable cause ... to believe that the suspect committed the crime”; (4) “strong reason to believe that the suspect is in the premises being entered”; (5) “a likelihood that the suspect will escape if not swiftly apprehended”; and (6) the peaceful circumstances of the entry. MacDonald, 916 F.2d at 769-70 (quoting Dorman, 435 F.2d at 392-93). We have consistently emphasized that these factors “are merely illustrative, not exhaustive, and the presence or absence of any one factor is not conclusive.” United States v. Medina, 944 F.2d 60, 68 (2d Cir.1991), cert. denied, — U.S.—, 112 S.Ct. 1508, 117 L.Ed.2d 646 (1992). Applying these six factors, we conclude that the district court’s finding of exigent circumstances is supported by the record. First, the ongoing sale and distribution of kilogram quantities of cocaine from Apartment 1A constituted a serious offense. See MacDonald, 916 F.2d at 770. Second, Hernandez had informed the DEA agents that firearms were kept in Apartment 1A and used for protection. Third, the agents had probable cause to believe that Gordils, his associates, and Bastar had committed and were continuing to commit large scale narcotics distribution offenses. Fourth, the agents had reason to believe that Bastar and perhaps others were inside the apartment. Fifth, there was a substantial likelihood that Bastar and anyone else inside the apartment might flee and escape arrest. Hernandez had informed the agents that Bastar and perhaps others"
}
] |
244937 | prove that the conditions against which [s]he protested actually amounted to a violation of Title VII.” Wimmer v. Suffolk County Police Dep’t, 176 F.3d 125, 134 (2nd Cir.1999), cert. denied, 528 U.S. 964, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999)(quoting Manoharan, M.D., v. Columbia University College of Physicians & Surgeons, 842 F.2d 590, 594 (2nd Cir.1988)). Appellant “must demonstrate only that [she] had a ‘good faith, reasonable belief that the underlying challenged actions of the employer violated the law.’ ” Id. “The term ‘protected activity’ refers to action taken to protest or oppose statutorily prohibited discrimination.” Cruz v. Coach Stores Inc., 202 F.3d 560, 566 (2nd Cir.2000)(citing 42 U.S.C. § 2000e-3 and Wimmer, 176 F.3d at 134-135); see also REDACTED In the instant case Fantini did not comply with the first requirement by failing to show that she engaged in a protected activity within the meaning of the statute, since the “misconduct of male, Edward Manning under the (“Conflict of Interest Law and Financial Disclosure Law”) ...; for changing the general ledger system contrary to law”, is not an unlawful employment practice under Title VIL R.A. | [
{
"docid": "22077082",
"title": "",
"text": "v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir.1980). To establish that his activity is protected under Title VII, a plaintiff need not prove the merit of his underlying discrimination complaint, but only that he was acting under a good faith, reasonable belief that a violation existed. Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir.1989); Manoharan v. Columbia University College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988). In addition to protecting the filing of formal charges of discrimination, § 704(a)’s opposition clause protects as well informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges. See Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir.1989), and Schlei & Grossman, Employment Discrimination Law, 548-49 (1983). The causal connection between the protected activity and the adverse employment action can be established indirectly with circumstantial evidence, for example, by showing that the protected activity was followed by discriminatory treatment or through evidence of disparate treatment of employees who engaged in similar conduct or directly through evidence of retaliatory animus. DeCintio v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir.), cert. denied 484 U.S. 965, 108 S.Ct. 455, 98 L.Ed.2d 395 (1987); Grant v. Bethlehem Steel, 622 F.2d 43, 46 (2d Cir. 1980). Title VII is violated if a retaliatory motive played a part in the adverse employment actions even if it was not the sole cause, Davis v. State University of New York, 802 F.2d 638, 642 (2d Cir.1986), and if the employer was motivated by retaliatory animus, Title VII is violated even if there were objectively valid grounds for the discharge. DeCintio, 821 F.2d at 116, n. 8. Once the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to “articulate some legitimate, nondiscriminatory reason” for its action. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. If they do so, the burden then shifts back to the plaintiff “to"
}
] | [
{
"docid": "19840092",
"title": "",
"text": "employer action that ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,’ ” a woman’s fiancé had standing to file a Title VII claim when he was fired after she filed a sexual harassment charge. Thompson v. N. Am. Stainless, L.P., — U.S. -, -, 131 S.Ct. 863, 870, 178 L.Ed.2d 694 (2011). The Court, however, declined to identify the types of relationships that are protected from third-party retaliation. Id. at 868. The Court instead noted that firing a close family member would almost always be protected, but “inflicting a milder reprisal on a mere acquaintance will almost never” be protected. Id. Thus, a plaintiff can establish a third-party retaliation claim by demonstrating: (1) that someone closely related engaged in an activity protected by Title VII, (2) that the plaintiff suffered an adverse employment action after or contemporaneously to the protected activity, and (3) that there is a causal link between the protected activity and the adverse employment action. See id. at 868-69. An employee has engaged in a protected activity pursuant to Title VII if he or “she has either (1) ‘opposed any practice made an unlawful employment practice’ by Title VII or (2) ‘made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing’ under Title VII.” Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir.2009) (quoting Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir.1996)). The practice opposed does not actually have to be a violation of Title VII, because the plaintiff must “demonstrate only that [he or she] had a ‘good faith, reasonable belief that the underlying challenged actions of the employer violated the law.’ ” Id. (quoting Wimmer v. Suffolk Cnty. Police Dept., 176 F.3d 125, 134 (2nd Cir.1999)). The opposition clause protects “informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges.” Id. (internal citations omitted). Defendant Policlinica states that both plaintiffs’ third-party retaliation"
},
{
"docid": "23178633",
"title": "",
"text": "his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. ... 42 U.S.C. § 2000e-2(a)(l). The district court’s grant of judgment as a matter of law on the Title VII claim at the close of Wimmer’s case was based on its determination that Wimmer had presented insufficient evidence to establish a prima facie case of retaliation. “To establish a prima facie case of retaliation, an employee must show ‘[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action.’ ” Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir.1998) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir.1995)). To establish the first of these elements—participation in a protected activity—Wimmer need not prove that the conditions against which he protested actually amounted to a violation of Title VII. See id. (citing Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988)). Rather, Wimmer must demonstrate only that he had a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” Manoharan, 842 F.2d at 593 (quotation omitted). We agree with the district court that Wimmer failed to establish that he was engaged in a protected activity. Wim-mer’s theory of recovery is that he was given poor evaluations and eventually terminated for having reported overhearing racial slurs made by police officers against black citizens and perhaps for questioning Officer Hodge’s two stops of minority (Hispanic) motorists without cause. There is no claim that any of this activity was directed at Wimmer or any of his co-employees. The precise issue presented, whether a complaint of retaliation for opposing discrimination by co-employees against non-employees is cognizable under Title VII, is one of first impression in this Circuit. Several other circuits, however, have addressed analogous circumstances. The case most closely on point is Crowley v. Prince George’s County, 890 F.2d 683 (4th Cir.1989). In Crowley, a white male sued his former"
},
{
"docid": "23037681",
"title": "",
"text": "964, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999), in which we examined the scope of protected activities for Title VII retaliation claims. We held in Wim-mer that the employment practices opposed by the plaintiff need not have “actually amounted to a violation of Title VII.” Id. at 134. Rather, the plaintiff must have had a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” Id. (quoting Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988)) (internal quotation marks omitted). We quoted approvingly from Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir.1978): “[N]ot every act by an employee in opposition to ... discrimination is protected. The opposition must be directed at an unlawful employment practice of an employer, not an act of discrimination by a private individual.” Wimmer, 176 F.3d at 135 (internal quotation marks omitted). We then concluded that the plaintiffs opposition to acts that he ascribed to racism perpetrated by fellow police officers against the.public was not a protected activity under Title VII “because his opposition was not directed at an unlawful employment practice of his employer.” Id. (emphasis in original). The district court held, and the defendants argue, that Wimmer confines “protected activity” to opposition to the unlawful employment practices of the same employer that engaged in the retaliation. According to this view, McMenemy’s investigation of sexual harassment committed by the Union is-not protected activity because the alleged retaliation was committed by the City rather than by the Union. Neither the facts nor the reasoning of Wimmer support this conclusion. Wimmer did not involve two different employers. Rather, the plaintiffs claim in Wimmer failed because the plaintiffs activities were directed at the behavior of co-employees toward third parties and were unrelated to an employment practice made illegal by Title VII. The plain language of Title VII simply does not support the limitation the defendants seek to place on retaliation claims. It prohibits discrimination by an employer against an employee who “has opposed any practice made an unlawful employment practice” by Title VII or who"
},
{
"docid": "23037680",
"title": "",
"text": "of discovery sanctions. DISCUSSION I. Title VII and New York Human Rights Law Retaliation Claims Title VII prohibits an employer from “discriminat[ing] against any of its employees ... because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of such retaliation, the plaintiff must show: (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the ad verse employment action. See Gordon v. New York City Bd. of Educ., 232 F.3d 111, 113 (2d Cir.2000). In holding that McMenemy’s investigation of Kern’s sexual harassment allegation against the president of the Union did not constitute a “protected activity,” the district court relied on Wimmer v. Suffolk Co. Police Dep’t, 176 F.3d 125 (2d Cir.), cert. denied, 528 U.S. 964, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999), in which we examined the scope of protected activities for Title VII retaliation claims. We held in Wim-mer that the employment practices opposed by the plaintiff need not have “actually amounted to a violation of Title VII.” Id. at 134. Rather, the plaintiff must have had a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” Id. (quoting Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988)) (internal quotation marks omitted). We quoted approvingly from Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir.1978): “[N]ot every act by an employee in opposition to ... discrimination is protected. The opposition must be directed at an unlawful employment practice of an employer, not an act of discrimination by a private individual.” Wimmer, 176 F.3d at 135 (internal quotation marks omitted). We then concluded that the plaintiffs opposition to acts that he ascribed to racism perpetrated by fellow police officers against the.public was not a protected activity"
},
{
"docid": "23451025",
"title": "",
"text": "meaning of the statute, since the “misconduct of male, Edward Manning under the (“Conflict of Interest Law and Financial Disclosure Law”) ...; for changing the general ledger system contrary to law”, is not an unlawful employment practice under Title VIL R.A. 79-80; see also Wimmer, 176 F.3d at 135 (“In the absence of such evidence, [Appellant’s] claim of retaliation is not cognizable under Title VII because [her] opposition was not directed at an unlawful employment practice of [her] employer.”). In other words, Appellant’s complaints to her supervisor “either pointed out discrimination against particular individuals nor discriminatory practices by” Defendants. Manoharan, M.D., 842 F.2d at 594. Consequently, Fantini could not have had a “ ‘good faith, reasonable belief that the underlying challenged actions of the employer violated the law.’ ” Wimmer, 176 F.3d at 134. For said reasons, we affirm the district court’s dismissal of Appellant’s retaliation claim under Title VII. C. Count Two We agree with the district court’s dismissal of Appellant’s 42 U.S.C. § 1983 claim against defendants Harrington and DelVecchio in their individual capacities. In Fantini’s Amended Complaint she specifically alleges that [e]ach of the individual Defendant’s [sic], separately and in concert, while acting under color of law or contrary to state law; deprived [her] of the rights, privileges and immunities secured to her by the Fourteenth Amendments [sic] to the United States Constitution. The specific state law that defendant violated is the Conflict of Interest Law. R.A. 80 (citing M.G.L. c. 268 and Exhibit “3.”) Although, “ ‘[a] person may recover damages [under § 1983] from a state or local official who, while acting under color of state law, commits a constitutional tort,’ ” R.A. 18 (quoting Wilson v. Town of Mendon, 294 F.3d 1, 6 (1st Cir.2002)), Fantini “identifies no legal basis for claiming that a violation by defendants of [the Massachusetts Conflict of Interest Law, Mass. Gen. L. ch. 268] violates her rights under the ‘Fourteenth Amendment to the United States Constitution.’ ” R.A. 18-19 (quoting Amended Complaint, ¶ 79). Moreover, we find that even if Appellant intended to include Salem State College under Count"
},
{
"docid": "1738665",
"title": "",
"text": "protected activity is one that “protest[s] or oppose[s] statutorily prohibited discrimination.” Cruz, 202 F.3d at 566; accord Treglia v. Town of Manlius, 313 F.3d 713, 719-20 (2d Cir.2002) (“[Plaintiffs] attempts to assert his rights against discrimination are protected activities, including his alleged complaints to [his supervisor], his ultimate filing of federal and state administrative charges[,] ... and his efforts ... to investigate his claims.”); cf Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir.2001) (“[The] filing of a complaint [alleging discrimination] with the EEOC is an activity protected by the ADA.”). “[Opposition to a Title VII violation need not rise to the level of a formal complaint in order to receive statutory protection.” Cruz, 202 F.3d at 566. However, in order to prove that actions were taken to protest or oppose statutorily prohibited activity, Plaintiff must demonstrate that he had a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” Wimmer v. Suffolk Cnty. Police Dep’t, 176 F.3d 125, 134 (2d Cir.1999); accord Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 211 (2d Cir.2006). In support of his retaliation claim, Plaintiff argues that he reported Hernandez to Defendant’s Human Resources Department. (Pl.’s Br. 10.) However, at no point in either the Complaint or the EEOC Charge does Plaintiff allege that he reported any statutorily prohibited behavior by Hernandez. See Cruz, 202 F.3d at 566. Rather, Plaintiffs Complaint, at least as currently written, appears to relate only to a personality dispute with Hernandez. Therefore, Plaintiffs reporting of Hernandez’s conduct cannot be considered a “protected activity” within the meaning of Title VII. See Cruz, 202 F.3d at 566. Nonetheless, in the EEOC Charge, Plaintiff does indicate that he reported to his supervisor the two confrontations that he had with De Leon, Freddy, and Vargas, Jr., in which his co-workers allegedly indicated that they had gift giveaways only for “[their] people” and refused to give the gifts to “Black applicants” whom Plaintiff had processed. (EEOC Charge 2.) In light of this allegation, Plaintiff has adequately pleaded that he reported to his"
},
{
"docid": "23451022",
"title": "",
"text": "employees.” Miller, 991 F.2d at 587. For said reason, we find that “Title VII addresses the conduct of employers only and does not impose liability on co-workers.... ” Powell v. Yellow Book U.S.A., Inc., 445 F.3d 1074, 1079 (8th Cir.2006)(citing Smith v. St. Bernards Reg’l Med. Ctr., 19 F.3d 1254, 1255 (8 th Cir.1994)). Consequently, we find that there is no individual employee liability under Title VII. Hence, we affirm the district court’s dismissal of the Title VII claims against individual employee defendants, Matilda DelVecchio and Nancy D. Harrington. 3. Retaliation Under Title VII We agree with the district court’s dismissal of Appellant’s retaliation claim under Title VII. Title VII, 42 U.S.C. § 2000e-3, specifically states that [i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. “In order to make out a prima facie case of retaliation, ... [Appellant has] to prove that (1) she engaged in protected conduct under Title VII; (2) she suffered an adverse employment action; and (3) the adverse action was causally connected to the protected activity.” Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 22 (1st Cir.2002)(citing Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998)). “An employee has engaged in activity protected by Title VII if she has either (1) ‘opposed any practice made an unlawful employment practice’ by Title VII or (2) ‘made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing’ under Title VII.” Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir.1996)(quoting 42 U.S.C. § 2000e-3(a)). “To establish the first of these elements-participation in a protected activity-[Appellant] need not prove that the conditions against which [s]he protested actually amounted to a violation of Title VII.” Wimmer v. Suffolk County Police Dep’t, 176 F.3d 125, 134 (2nd Cir.1999), cert. denied, 528 U.S. 964, 120"
},
{
"docid": "5726784",
"title": "",
"text": "v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (internal quotations omitted)). Accordingly, it is insufficient for a party opposing summary judgment “merely to assert a conclusion without supplying supporting arguments or facts.” BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (internal quotations omitted). II. Application A. Retaliation Claims Courts employ the same analytical framework when considering retaliation claims brought pursuant to Title VII, NYSHRL, and NYCHRL. Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir.2000)(citing cases). On a motion for summary judgment, “(1) plaintiff must demonstrate a prima facie case of retaliation, (2) defendant then has the burden of pointing to evidence that there was a legitimate, non-retaliatory reason for the complained of action, and (3) if the defendant meets its burden, plaintiff must demonstrate that there is sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation.” Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir.1998). To establish a prima facie case of retaliation, Knight must demonstrate that “(1) [he] was engaged in protected activity; (2) the employer was aware of that activity; (3) [Knight] suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action.” Distasio v. Perkin Elmer Corp., 157 F.3d 55, 66 (2d Cir.1998); see also Reed v. Lawrence, 95 F.3d 1170, 1178 (2d Cir.1996). The term “protected activity” refers to action taken to protest or oppose statutorily prohibited discrimination. See 42 U.S.C. § 2000e-3; see also Wimmer v. Suffolk County Police Dep’t, 176 F.3d 125, 134-35 (2d Cir.1999). Informal as well as formal complaints constitute protected activity. Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir.1990). Moreover, to establish that his activity is protected, Knight “need not prove the merit of his underlying discrimination complaint, but only that he was acting under a good faith, reasonable belief that a violation existed.” Id. at 209; see also Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir.1989). An adverse employment"
},
{
"docid": "22798490",
"title": "",
"text": "application. Moreover, nothing in the complaint supports the inference that Cruz was qualified to be a financial analyst. Even taking as true Cruz’s allegation that Coach gave some of her responsibilities to the financial analysts, this fact alone does not establish that Cruz was competent to perform all the duties of the analyst job, and nothing else in the complaint helps to demonstrate that point. The complaint contains no information about either the responsibilities of a financial analyst or Cruz’s employment skills, information that might have supported the inference that Cruz was fit for the position. Without such information, the complaint cannot be understood to allege, either directly or indirectly, that Cruz was qualified for the job. Absent this allegation, and absent any claim that she applied for the financial analyst position, Cruz’s complaint fails to state a prima facie case for failure to promote. B. Retaliation Along with the failure to promote claim, Cruz’s complaint alleged that Coach terminated her in retaliation for “defending] herself against Heriveaux’s sexual harassment and physical assault” in the altercation that ultimately led to her dismissal. Here as well, Cruz’s complaint fails to state the elements of a prima facie retaliation claim. Accordingly, we affirm the district court’s dismissal of this claim. To establish a prima facie case for retaliation, a plaintiff must demonstrate “participation in protected activity known to the defendant, an employment action disadvantaging the person engaged in the protected activity, and a causal connection between the protected activity and the adverse employment action.” Johnson v. Palma, 931 F.2d 203, 207 (2d Cir.1991). The term “protected activity” refers to action taken to protest or oppose statutorily prohibited discrimination. See 42 U.S.C. § 2000e-3; see also, e.g., Wimmer v. Suffolk County Police Dep’t, 176 F.3d 125, 134-35 (2d Cir.) (discussing scope of statute’s “protected activity” provision), cert. denied, — U.S.-, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999). In this case, Cruz did not make out a prima facie case of retaliation because she did not claim to have engaged in any “protected activity” within the meaning of the statute. Slapping one’s harasser, even"
},
{
"docid": "22798491",
"title": "",
"text": "altercation that ultimately led to her dismissal. Here as well, Cruz’s complaint fails to state the elements of a prima facie retaliation claim. Accordingly, we affirm the district court’s dismissal of this claim. To establish a prima facie case for retaliation, a plaintiff must demonstrate “participation in protected activity known to the defendant, an employment action disadvantaging the person engaged in the protected activity, and a causal connection between the protected activity and the adverse employment action.” Johnson v. Palma, 931 F.2d 203, 207 (2d Cir.1991). The term “protected activity” refers to action taken to protest or oppose statutorily prohibited discrimination. See 42 U.S.C. § 2000e-3; see also, e.g., Wimmer v. Suffolk County Police Dep’t, 176 F.3d 125, 134-35 (2d Cir.) (discussing scope of statute’s “protected activity” provision), cert. denied, — U.S.-, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999). In this case, Cruz did not make out a prima facie case of retaliation because she did not claim to have engaged in any “protected activity” within the meaning of the statute. Slapping one’s harasser, even assuming ar-guendo that Cruz did so in response to Title VH-barred harassment, is not a protected activity. While the law is clear that opposition to a Title VII violation need not rise to the level of a formal complaint in order to receive statutory protection, this notion of “opposition” includes activities such as “making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges.” Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir.1990). It does not constitute a license for employees to engage in physical violence in order to protest discrimination. We need not decide here whether violence in opposition to Title VII-prohibited behavior might, in some circumstances, be protected under Title VII’s retaliation provision. In the situation at bar, Cruz had many options for resisting Heriveaux’s offensive behavior, including leaving the room and reporting the incident to Human Resources. She selected none of these options, however, but chose instead to respond by slapping"
},
{
"docid": "1738664",
"title": "",
"text": "establish discriminatory animus). Thus, without more, Plaintiffs Complaint simply fails to sufficiently plead facts that support an inference of discriminatory intent. Accordingly, the Court grants Defendant’s motion as to Plaintiffs discrimination claim. 2. Retaliation Title VII also prohibits employers from retaliating against an employee “because he has opposed any practice made an unlawful employment practice by this sub- chapter.” 42 U.S.C. § 2000e-3. The Second Circuit has held that, to state a claim for retaliation under Title VII, a plaintiff must plead facts demonstrating that: “(1) [he] participated in a protected activity-known to the defendant; (2) the defendant took an employment action disadvantaging [him]; and (3) there exists a causal connection between the protected activity and the adverse action.” Patane, 508 F.3d at 115. Defendant challenges Plaintiffs retaliation claim, arguing that Plaintiff has not alleged that he was engaged in any protected activity when he was terminated and that there is no causal relationship between the termination and any supposedly protected activity. (Def.’s Br. 20.) The Court addresses each argument below, a. Protected Activity A protected activity is one that “protest[s] or oppose[s] statutorily prohibited discrimination.” Cruz, 202 F.3d at 566; accord Treglia v. Town of Manlius, 313 F.3d 713, 719-20 (2d Cir.2002) (“[Plaintiffs] attempts to assert his rights against discrimination are protected activities, including his alleged complaints to [his supervisor], his ultimate filing of federal and state administrative charges[,] ... and his efforts ... to investigate his claims.”); cf Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir.2001) (“[The] filing of a complaint [alleging discrimination] with the EEOC is an activity protected by the ADA.”). “[Opposition to a Title VII violation need not rise to the level of a formal complaint in order to receive statutory protection.” Cruz, 202 F.3d at 566. However, in order to prove that actions were taken to protest or oppose statutorily prohibited activity, Plaintiff must demonstrate that he had a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” Wimmer v. Suffolk Cnty. Police Dep’t, 176 F.3d 125, 134 (2d Cir.1999); accord Kessler v. Westchester"
},
{
"docid": "20452777",
"title": "",
"text": "(2d Cir.2001); see also id. (vacating summary judgment where plaintiffs “belief that [defendant’s] alleged sexual harassment violated Title VII was reasonable”). “The reasonableness of the plaintiffs belief is to be assessed in light of the totality of the circumstances.” Galdieri-Ambrosini, 136 F.3d at 292. A plaintiffs belief on this point is not reasonable simply because he or she complains of something that appears to be discrimination in some form. For example, when a hospital administrator asserted that he had been terminated after complaining that a white employee had been “chosen over qualified black and other minority applicants,” we held that the administrator failed to make out a prima facie case because his “objections at the time neither pointed out discrimination against particular individuals nor discriminatory practices by [the employer]” and were thus “directed at something that, as it was alleged, is not properly within the definition of an ‘unlawful employment practice.’ ” Manoharan v. Columbia Univ. Coll, of Physicians & Surgeons, 842 F.2d 590, 593-94 (2d Cir.1988) (quoting 42 U.S.C. § 2000e-2 (j) (1982)). Similarly, a black police officer who “reported overhearing racial slurs made by [other] police officers against black citizens” had not engaged in protected activity despite “opposing discrimination by co-employees against non-employees” because his “opposition was not directed at an unlawful employment practice of his employer.” Wimmer v. Suffolk Cnty. Police Dep’t, 176 F.3d 125, 134-35 (2d Cir.1999) (emphasis in original); see also Drumm v. SUNY Geneseo Coll., 486 Fed.Appx. 912, 914 (2d Cir.2012) (“[Plaintiffs allegations that her supervisor ‘berated’ her and made other harsh comments ... amount only to general allegations of mistreatment, and do not support an inference that plaintiff had a reasonable good faith belief that she was subject to gender discrimination.”). “As to the second element [of the prima facie case], implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiffs opposition was directed at conduct prohibited by Title VII.” Galdieri-Ambrosini, 136 F.3d at 292. In Galdieri-Ambrosini, we affirmed a district court’s post-trial entry of"
},
{
"docid": "19840093",
"title": "",
"text": "protected activity pursuant to Title VII if he or “she has either (1) ‘opposed any practice made an unlawful employment practice’ by Title VII or (2) ‘made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing’ under Title VII.” Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir.2009) (quoting Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir.1996)). The practice opposed does not actually have to be a violation of Title VII, because the plaintiff must “demonstrate only that [he or she] had a ‘good faith, reasonable belief that the underlying challenged actions of the employer violated the law.’ ” Id. (quoting Wimmer v. Suffolk Cnty. Police Dept., 176 F.3d 125, 134 (2nd Cir.1999)). The opposition clause protects “informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges.” Id. (internal citations omitted). Defendant Policlinica states that both plaintiffs’ third-party retaliation claims fail because they filed their discrimination claims only after plaintiff Rodriguez was fired and plaintiff Colon resigned, so there was no retaliation for an action protected by Title VII. Id. Plaintiffs respond that the protected action plaintiff Rodriguez took was that he “objected and repudiated the unlawful conduct” of Dr. Chevres and that plaintiff Colon was subjected to a hostile work environment as a result. (Docket No. 30 at p. 35.) Plaintiffs fail to argue what protected action plaintiff Colon took. See id. The only matter that plaintiff Colon can argue is a protected action is her statement that she was retaliated against when she told Dr. Chevres that “she could not continue paying for what had happened years earlier with GonzalezAmoros.” Id. at p. 29. Taking reasonable inferences in the non-moving party’s favor, the Court assumes this is the protected conduct for which plaintiff Rodriguez argues he was subjected to third-party retaliation. First, the Court finds that plaintiffs did not have the kind of relationship protected in third-party retaliation claims. Plaintiffs did not"
},
{
"docid": "6512697",
"title": "",
"text": "had a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law,” not that the employer’s conduct actually violated the law. Quinn, 159 F.3d at 769 (citing Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988)). The reasonableness of a plaintiffs belief is assessed in light of the totality of the circumstances. See Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.1998) (citing Reed, 95 F.3d at 1178). An employee’s belief that she was opposing an unlawful employment practice must also be objectively reasonable, in the sense that the asserted opposition must be grounded on sufficient evidence that the employee was the subject of discrimination and harassment at the time the protest to the offending conduct is registered. See Wimmer v. Suffolk County Police Dept., 176 F.3d 125, 135-36 (2d Cir.1999). As proper context, it bears noting that sexual harassment claims under NYSHRL and NYCHRL are analyzed under the same standards of proof as that of Title VII, and thus, a sexual harassment claim is actionable “when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Quinn, 159 F.3d at 764-65 (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Whether an environment is “hostile” or “abusive” depends on the totality of circumstances, and courts must consider a variety of factors including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). As a general matter, “isolated remarks or occasional episodes of harassment” are not actionable, but rather, “the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive.” Id.-, see also Carrero v. New York City Hous. Auth., 890 F.2d 569, 577-78 (2d Cir.1989) (holding that to be"
},
{
"docid": "15978853",
"title": "",
"text": "and (3) a causal connection between the two. See, e.g., Watson v. Paulson, 578 F.Supp.2d 554, 556 (S.D.N.Y. 2008); Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 68-69, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (citations and quotations omitted); Pugni v. Reader’s Digest Ass’n, Inc., No. 05 Civ. 8026, 2007 WL 1087183, at *22 (S.D.N.Y. Apr. 9, 2007). (i) Did Schanfield Participate in a Protected Activity .Known to Defendants? “The term ‘protected activity’ refers to action taken to protest or oppose statutorily prohibited discrimination.” Cruz v. Coach Stores. Inc., 202 F.3d 560, 566 (2d Cir.2000). It is “clear” that a protected activity need not “rise to the level of a formal complaint in order to receive statutory protection.” Id. Protected activities encompass “making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of coworkers who have filed formal charges.” Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.1990). A plaintiff “need not establish that the conduct [he] opposed was in fact a violation of [the law],” Bush v. Fordham Univ., 452 F.Supp.2d 394, 416 (S.D.N.Y. 2006) (citing Manoharan v. Columbia Univ. Coll, of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988) see also Davis v. State Univ. of N.Y., 802 F.2d 638, 642 (2d Cir.1986)), but he must demonstrate a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” Sumner, 899 F.2d at 209. The record demonstrates that Schanfield’s risk assessment reports included references to potential issues of discrimination, and that Defendants received such reports. Defendants contend, however, that because reporting risks is an activity that is within the scope of an employee’s duties it cannot be considered “oppositional,” and is, therefore, not protected activity in Schanfield’s case. That argument, which relies on older precedents, seems foreclosed by the Supreme Court’s recent decision in Crawford v. Metro. Gov’t of Nashville, — U.S. —, 129 S.Ct. 846, 851, 172 L.Ed.2d 650 (2009), where the Court considered the meaning of the term “oppose” in Title VII’s anti-retaliation provision."
},
{
"docid": "23451023",
"title": "",
"text": "to make out a prima facie case of retaliation, ... [Appellant has] to prove that (1) she engaged in protected conduct under Title VII; (2) she suffered an adverse employment action; and (3) the adverse action was causally connected to the protected activity.” Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 22 (1st Cir.2002)(citing Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998)). “An employee has engaged in activity protected by Title VII if she has either (1) ‘opposed any practice made an unlawful employment practice’ by Title VII or (2) ‘made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing’ under Title VII.” Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir.1996)(quoting 42 U.S.C. § 2000e-3(a)). “To establish the first of these elements-participation in a protected activity-[Appellant] need not prove that the conditions against which [s]he protested actually amounted to a violation of Title VII.” Wimmer v. Suffolk County Police Dep’t, 176 F.3d 125, 134 (2nd Cir.1999), cert. denied, 528 U.S. 964, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999)(quoting Manoharan, M.D., v. Columbia University College of Physicians & Surgeons, 842 F.2d 590, 594 (2nd Cir.1988)). Appellant “must demonstrate only that [she] had a ‘good faith, reasonable belief that the underlying challenged actions of the employer violated the law.’ ” Id. “The term ‘protected activity’ refers to action taken to protest or oppose statutorily prohibited discrimination.” Cruz v. Coach Stores Inc., 202 F.3d 560, 566 (2nd Cir.2000)(citing 42 U.S.C. § 2000e-3 and Wimmer, 176 F.3d at 134-135); see also Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2nd Cir.1990) (In addition to protecting the filing of formal charges of discrimination, § 704(a)’s opposition clause protects as well informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges.) In the instant case Fantini did not comply with the first requirement by failing to show that she engaged in a protected activity within the"
},
{
"docid": "23451024",
"title": "",
"text": "S.Ct. 398, 145 L.Ed.2d 310 (1999)(quoting Manoharan, M.D., v. Columbia University College of Physicians & Surgeons, 842 F.2d 590, 594 (2nd Cir.1988)). Appellant “must demonstrate only that [she] had a ‘good faith, reasonable belief that the underlying challenged actions of the employer violated the law.’ ” Id. “The term ‘protected activity’ refers to action taken to protest or oppose statutorily prohibited discrimination.” Cruz v. Coach Stores Inc., 202 F.3d 560, 566 (2nd Cir.2000)(citing 42 U.S.C. § 2000e-3 and Wimmer, 176 F.3d at 134-135); see also Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2nd Cir.1990) (In addition to protecting the filing of formal charges of discrimination, § 704(a)’s opposition clause protects as well informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges.) In the instant case Fantini did not comply with the first requirement by failing to show that she engaged in a protected activity within the meaning of the statute, since the “misconduct of male, Edward Manning under the (“Conflict of Interest Law and Financial Disclosure Law”) ...; for changing the general ledger system contrary to law”, is not an unlawful employment practice under Title VIL R.A. 79-80; see also Wimmer, 176 F.3d at 135 (“In the absence of such evidence, [Appellant’s] claim of retaliation is not cognizable under Title VII because [her] opposition was not directed at an unlawful employment practice of [her] employer.”). In other words, Appellant’s complaints to her supervisor “either pointed out discrimination against particular individuals nor discriminatory practices by” Defendants. Manoharan, M.D., 842 F.2d at 594. Consequently, Fantini could not have had a “ ‘good faith, reasonable belief that the underlying challenged actions of the employer violated the law.’ ” Wimmer, 176 F.3d at 134. For said reasons, we affirm the district court’s dismissal of Appellant’s retaliation claim under Title VII. C. Count Two We agree with the district court’s dismissal of Appellant’s 42 U.S.C. § 1983 claim against defendants Harrington and DelVecchio in their individual"
},
{
"docid": "5939439",
"title": "",
"text": "to 42 U.S.C. § 2000e~3 are also subject to the familiar McDonnell Douglas burden-shifting analysis described above. See Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir.1980). “To establish a prima facie case of retaliation, an employee must show ‘[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action.’ ” Wimmer, 176 F.3d 125, 134 (quoting Quinn, 159 F.3d 759, 769 (2d Cir.1998)). Courts have held that the plaintiffs burden at this stage is slight, and “[a plaintiff] may establish a prima facie case with de minimis evidence.” Wanamaker, 108 F.3d at 465 (analyzing retaliation claim under the ADEA) (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988)); see also Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 633 (2d Cir.1996), cert. denied, 519 U.S. 1150, 117 S.Ct. 1083, 137 L.Ed.2d 218 (1997). “To establish the first of these elements — participation in a protected activity — plaintiff need not prove that the conditions against which he protested actually amounted to a violation of Title VII.” Wimmer, 176 F.3d 125, 134; see also Davis v. State University of New York, 802 F.2d 638, 642 (2d Cir.1986). Rather, plaintiff must demonstrate “only that he had a ‘good faith, reasonable belief that the underlying challenged actions of the employer violated the law.’ ” Wimmer, 176 F.3d 125, 134 (quoting Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988)). Plaintiffs reporting of Greene’s alleged racial slur constitutes protected activity. See Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir.1990) (“In addition to protecting the filing of formal charges of discrimination, [Title VII] protects as well informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges.”); Stordeur v. Computer Assocs. Int’l, Inc., 995 F.Supp. 94, 105 (S.D.N.Y.1998); Barcher v. New York"
},
{
"docid": "5939440",
"title": "",
"text": "plaintiff need not prove that the conditions against which he protested actually amounted to a violation of Title VII.” Wimmer, 176 F.3d 125, 134; see also Davis v. State University of New York, 802 F.2d 638, 642 (2d Cir.1986). Rather, plaintiff must demonstrate “only that he had a ‘good faith, reasonable belief that the underlying challenged actions of the employer violated the law.’ ” Wimmer, 176 F.3d 125, 134 (quoting Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988)). Plaintiffs reporting of Greene’s alleged racial slur constitutes protected activity. See Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir.1990) (“In addition to protecting the filing of formal charges of discrimination, [Title VII] protects as well informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges.”); Stordeur v. Computer Assocs. Int’l, Inc., 995 F.Supp. 94, 105 (S.D.N.Y.1998); Barcher v. New York Univ. Sch. of Law, 993 F.Supp. 177, 184 (S.D.N.Y.1998) (“A ‘protected activity’ includes the registering of a complaint of a Title VII violation, which ‘need not take the form of a formal claim filed with a court or administrative agency ... [but] may simply be an objection voiced to the employer.’ ”) (quot ing Iannone v. Frederic R. Harris, Inc., 941 F.Supp. 403, 410 (S.D.N.Y.1996)), aff'd, 172 F.3d 37 (1999); Del Castillo, 941 F.Supp. at 438-39. To establish adverse employment action, plaintiff alleges much of the same incidents that supported his discrimination claim. These include, inter alia, (1) involuntary redeployment to the Out of State Residents Unit; (2) field work assignments to “high crime” areas in New York City; (3) Kilb’s refusal to act on plaintiffs transfer back to SGMU; (4) not being provided adequate resources to complete his job responsibilities; (5) defendant’s investigation of plaintiffs time reports and denial of his travel vouchers; and (6) defendant’s delays in acting upon plaintiffs employment grievances in a timely manner. As previously discussed, these incidents constitute adverse"
},
{
"docid": "6512696",
"title": "",
"text": "and (3) if the defendant meets its burden, plaintiff must adduce evidence sufficient to raise a fact issue as to whether the defendant’s reason was merely a pretext for retaliation. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764, 768-69 (2d Cir.1998) (citing Reed, 95 F.3d at 1177). To establish a prima facie case of such retaliation, the plaintiff must show: (1) participation in a protected activity and defendant’s knowledge of the protected activity; (2) an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action. See McMenemy, 241 F.3d at 283 (citing Gordon v. New York City Bd. of Educ., 232 F.3d 111, 113 (2d Cir.2000)). MCNY argues that Middleton has failed to establish a prima facie case of retaliation because she has not demonstrated participation in a protected activity or a causal connection between the alleged protected activity and her termination. The Court agrees. A. PARTICIPATION IN A PROTECTED ACTIVITY To prove participation in a protected activity, a plaintiff need only demonstrate that she had a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law,” not that the employer’s conduct actually violated the law. Quinn, 159 F.3d at 769 (citing Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988)). The reasonableness of a plaintiffs belief is assessed in light of the totality of the circumstances. See Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.1998) (citing Reed, 95 F.3d at 1178). An employee’s belief that she was opposing an unlawful employment practice must also be objectively reasonable, in the sense that the asserted opposition must be grounded on sufficient evidence that the employee was the subject of discrimination and harassment at the time the protest to the offending conduct is registered. See Wimmer v. Suffolk County Police Dept., 176 F.3d 125, 135-36 (2d Cir.1999). As proper context, it bears noting that sexual harassment claims under NYSHRL and NYCHRL are analyzed under the same standards of proof as that of Title VII, and thus,"
}
] |
282322 | trips to and from the vicinity of the church. He used a Russia-based service to host the online manifesto he posted shortly before the attack at Mother Emanuel, which explained his motives. In preparation for the attack, Defendant purchased hollow-point bullets, magazines, and a firearm that had all trav-elled in interstate commerce. Defendant entered Mother Emanuel carrying the firearm and loaded magazines in a tactical pouch that had travelled in interstate commerce. Inside the church, Defendant used the items he procured to Mil nine parishioners. Defendant presented no evidence to counter this evidence, and a rational fact-finder viewing the evidence in the light most favorable to the Government could conclude that the Government established an interstate commerce nexus. See, e.g., REDACTED United States v. MacEwan, 445 F.3d 237, 245 (3d Cir. 2006) (“[Tjhe Internet is an instrumentality and channel of interstate commerce.”); United States v. Corum, 362 F.3d 489, 493 (8th Cir. 2004) (“It is well-established that telephones, even when used intrastate, are in- strumentalities of interstate commerce.”); United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001) (“[T]he Government may establish the requisite interstate commerce nexus by showing that a firearm was manufactured outside the state where the defendant possessed it.”); United States v. Mason, 993 F.Supp.2d 1308, 1317 (D. Or. 2014) (rejecting a pretrial as-applied challenge to a § 249 claim because the Government alleged that | [
{
"docid": "17241301",
"title": "",
"text": "regulate and protect the instrumentalities of interstate commerce ... even though the threat may come only from intrastate activities.” Id In the 2006 amendment to the Federal Kidnapping Act, Congress prohibited the use of instrumentalities of interstate commerce to commit the offense of kidnapping. The Supreme Court in Shreveport upheld a federal law that prohibited the use of an instrumentality of interstate commerce — a railroad — to charge discriminatory intrastate rail rates. See Shreveport, 234 U.S. at 351, 34 S.Ct. 833. Here we have a federal law that prohibits the use of an instrumentality to engage in kidnapping. The indictment in this case charged and the evidence proved that Defendants used an instrumentality of interstate commerce to commit a kidnapping. Federal prosecution for such conduct comports with the Commerce Clause. We conclude Mr. Sanford’s and Mr. Ford’s as-applied Commerce Clause challenge fails. As previously noted, we need not and do not address their facial challenge. See Cob. Right to Life Comm,., 498 F.3d at 1155-56. B. Jury Instructions Mr. Ford challenges jury instructions 11 and 13 and argues the trial court plainly erred by not submitting to the jury two issues: (1) whether cell phones, GPS tracking devices, and the Internet are “in-strumentalities of interstate commerce” and (2) whether kidnapping is a “crime of violence” under 18 U.S.C. § 924(c)(1), which imposes a sentence for the use of a firearm during the commission of such a crime. He contends the jury should have been given the opportunity to determine these matters because they concern necessary elements the prosecution must prove. Keeping these questions from the jury, he says, violated his Sixth Amendment right to a fair jury trial. He cites United States v. Keeling, 235 F.3d 533, 537 (10th Cir. 2000) (holding that an element “must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict” (quotations omitted)). The Government argues these are questions of law for the judge to determine, not questions of fact for the jury to decide. Because Mr. Ford did not object at trial to the jury instructions"
}
] | [
{
"docid": "2810092",
"title": "",
"text": "Clark, 18 F.3d at 1342 (holding that statements identifying participants and their respective roles in the conspiracy are made in furtherance of a conspiracy). Therefore, the district court did not abuse its discretion in ruling that the out-of-court statements were admissible. C. Sufficiency of the Evidence Supporting the Firearm Convictions Nichols challenges the sufficiency of the evidence in support of his convictions for being a felon in possession of a firearm in violation 18 U.S.C. § 922(g)(1) and use of a firearm in a crime of violence in violation of 18 U.S.C. § 924(c)(1). He argues that the government failed to establish that he possessed the firearm in Tennessee and that the firearm traveled in or affected interstate commerce. In reviewing a challenge to the sufficiency of the evidence presented to establish the defendant’s guilt, this court views all evidence in the light most favorable to the government and determines whether there is any evidence from which a reasonable jury could find guilt beyond a reasonable doubt. See United States v. Talley, 164 F.3d 989, 996 (6th Cir.1999). “In order to convict under 18 U.S.C. § 922(g)(1), the Government must prove the following three elements: (1) that the defendant had a previous felony conviction, (2) that the defendant possessed a firearm, (3) that the firearm had traveled in or affected interstate commerce.” United States v. Walker, 160 F.3d 1078, 1087 (6th Cir.1998) (citation and quotations omitted). Unlike Section 922(g)(1), however, a conviction under 18 U.S.C. § 924(c)(1) does not require proof of an interstate nexus element. See United States v. Gibbs, 182 F.3d 408, 425-26 (6th Cir.1999). Possession can be either actual or constructive and may be proved by direct or circumstantial evidence. United States v. Murphy, 107 F.3d 1199, 1207 (6th Cir.1997). The government is required to prove only a minimal nexus between the firearm and interstate commerce. Id. at 1211. When viewed in the light most favorable to the government, the evidence is sufficient for a reasonable juror to infer that Nichols possessed the gun in Tennessee and carried it across the state line into Georgia where he"
},
{
"docid": "19098083",
"title": "",
"text": "commerce means commerce or travel between one state of the United States and another state. Commerce includes travel, trade, transportation and communication. If you decide that there was any effect at all on interstate commerce, then that is enough to satisfy this element. Urbano was convicted on both counts. His Guidelines sentence range for the firearm charge was increased because Urbano’s firearm had a high-capacity magazine and because his conduct constituted obstruction of justice. These two enhancements increased Urbano’s offense level from 14 to 22, thereby increasing his Guidelines sentence range from 33-41 months to 77-96 months. The district court sentenced him to 96 months’ imprisonment on the firearm charge and 10 months’ imprisonment on the drug charge, with both sentences to run concurrently. III. DISCUSSION A. Commerce Clause Challenge Urbano acknowledges this court is bound by precedent rejecting facial inter state commerce clause challenges to 18 U.S.C. § 922(g)(1). See, e.g., United States v. Dorris, 236 F.3d 582, 585-86 (10th Cir.2000); United States v. Bolton, 68 F.3d 396, 400 (10th Cir.1995). Here, he styles his argument as an “as-applied” challenge. He points out the only evidence the government presented linking him to interstate commerce is evidence that the gun traveled in interstate commerce at some earlier time. He argues that, in light of the Supreme Court case United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), this nexus with interstate commerce is insufficient because the gun was not an article presently traveling in interstate commerce and because there was no evidence his intrastate possession of the weapon substantially affected interstate commerce. This court has previously rejected an “as-applied” challenge identical to the one presented by Urbano. United States v. Farnsworth, 92 F.3d 1001, 1006-07 (10th Cir.1996). In Farnsworth, the defendant argued 18 U.S.C. § 922(g) was unconstitutional as applied to him because there was no showing that his individual actions had a substantial effect on interstate commerce. Id. at 1006. This court held that if a firearm has traveled across state lines, the minimal nexus with interstate commerce is met and the statute"
},
{
"docid": "9745156",
"title": "",
"text": "Accord United States v. Corey, 207 F.3d 84, 88 (1st Cir.2000) C'[T]he 'interstate nexus’ element was met provided the government demonstrated that [the defendant] possessed the shotgun in a state other than the one in which it was manufactured.”); United States v. Lawson, 173 F.3d 666, 670 (8th Cir.1999) (finding that the stipulation that the guns were manufactured outside of the state where the defendant possessed them satisfied \" 'the minimal nexus that the firearms have been, at some time, in interstate commerce,’ that is, that the firearms at some point prior to [the defendant's] possession ... crossed a state line” (quoting United States v. Shelton, 66 F.3d 991, 992 (8th Cir.1995) (per curiam))); United States v. Pierson, 139 F.3d 501, 504 (5th Cir.1998) (“[E]vidence that a gun was manufactured in one state and possessed in another state is sufficient to establish a past connection between the firearm and interstate commerce.”); United States v. Crump, 120 F.3d 462, 466 & n. 2 (4th Cir.1997) (\"[It] is our view that the movement of a firearm beyond the boundaries of its state of manufacture 'substantially affects' interstate commerce United States v. Lewis, 100 F.3d 49, 50 (7th Cir.1996) (\"[P]roof of a gun's manufacture outside of the state in which it was allegedly possessed is sufficient to support the factual finding that the firearm was 'in or affecting commerce.' ” (quoting United States v. Lowe, 860 F.2d 1370, 1374 (7th Cir.1988))); United States v. Farnsworth, 92 F.3d 1001, 1006 (10th Cir.1996) (finding expert testimony that the defendant's gun had been manufactured in a different state from that in which it was found was sufficient nexus to interstate commerce); United States v. Sanders, 35 F.3d 61, 62 (2d Cir.1994) (finding fact that gun was manufactured in a state different from that in which it was possessed was sufficient nexus to interstate commerce); United States v. Morris, 904 F.2d 518, 519 (9th Cir.1990) (same); United States v. Singleton, 902 F.2d 471, 473 (6th Cir.1990) (\"[T]he mere fact that the firearm was manufactured in a different state established a sufficient nexus with interstate commerce.”)."
},
{
"docid": "22111360",
"title": "",
"text": "been cumulative”); see also United States v. Garcia, 854 F.2d 1280, 1284 (11th Cir.1988) (finding no abuse of discretion in denial of continuance where denial merely prevented defendant from presenting cumulative evidence). VI. Section 922(g) makes it unlawful for people in specified categories “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C.A. § 922(g). Williams contends that the government failed to present sufficient evidence of the interstate commerce element. This argument is without merit. The requisite connection to interstate commerce can be satisfied through proof that the firearm or ammunition is manufactured in one state and possessed in another. See United States v. Gallimore, 247 F.3d 134, 138 (4th Cir.2001) (“[T]he Government may establish the requisite interstate commerce nexus by showing that a firearm was manufactured outside the state where the defendant possessed it.”). The government presented expert testimony indicating that the 9-mm bullet that was retrieved from Collins’s body was not homemade and was manufactured outside of Virginia and that no 9-mm guns are manufactured in Virginia. Because Collins was murdered in Virginia, that evidence was sufficient to satisfy the interstate commerce requirement of section 922(g). VII. Finally, Williams argues that his sentence was imposed in violation of the principles set out in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and that he is therefore entitled to a remand for re-sentencing. The government agrees with Williams’s position on this point, as do we. Broadly speaking, there are two types of Booker sentencing errors. The first kind of error — the Sixth Amendment or constitutional error — occurs if a sentencing court “enhances a sentence beyond the maximum authorized by facts found by a jury beyond a reasonable doubt or admitted by the defendant.” United States v. Rodriguez, 433 F.3d 411, 414 (4th Cir.2006). The second kind of error — sometimes called a statutory Booker error — occurs if the sentencing court “treats"
},
{
"docid": "10805955",
"title": "",
"text": "sufficiency challenges de novo. l. The sole legal basis on which Defendant argues the Government failed to establish the interstate nature of his internet communications is United States v. Schaefer, 501 F.3d 1197 (10th Cir.2007), superceded by Effective Child Pornography Prosecution Act of 2007, Pub.L. No. 110-358 (Oct. 8, 2008), and overruled in part by United States v. Sturm, 672 F.3d 891 (10th Cir.2012) (en banc). We need not discuss the particulars of that war-torn decision here. Suffice to say Schaefer still stands for the proposition that one individual’s use of the internet, “standing alone,” is insufficient to establish that a web transmission “traveled across state lines in interstate commerce.” Schaefer, 501 F.3d at 1200-01; but see, e.g., United States v. Lewis, 554 F.3d 208, 214-16 (1st Cir.2009) (holding one’s use of the internet, “standing alone,” is enough to satisfy a penal statute’s “in interstate ... commerce” element); United States v. MacEwan, 445 F.3d 237, 244 (3d Cir.2006) (same). Like the statute at issue in Schaefer, the federal wire fraud statute requires a transmission “in interstate ... commerce.” 18 U.S.C. § 1343. In Schaefer, we recognized that § 1343’s “ ‘in commerce’ terminology has been repeatedly held to require that communications actually cross state lines to support a conviction.” Schaefer, 501 F.3d at 1202; see, e.g., Smith v. Ayres, 845 F.2d 1360, 1366 (5th Cir.1988) (Higginbotham, J.) (“As several courts have recognized, [§ 1343] requires that the wire communication cross state lines.”). In his opening brief, Defendant says the Government failed to carry its burden because it did not “present any evidence of any interstate movement of a wire transmission posting a website advertising [Defendant’s] legal services on the internet.” Considering, as we must, the evidence in a light most favorable to the Government, together with the reasonable inferences to be drawn therefrom, we disagree: A jury could view the Government’s evidence as establishing the required interstate nexus. We begin with some facts readily discernible from the record. First, at all relevant times, Defendant was in control of the content of an internet website with the domain name boplaw.com. Second,"
},
{
"docid": "1512569",
"title": "",
"text": "The “in and affecting interstate commerce” element is not specifically alleged as to the RG revolver, but more broadly as to “a firearm.” Thus, the indictment requires proof of a nexus between interstate commerce and a “firearm,” as that word is defined. Accordingly, because the definition of “firearm” includes the frame, proof that the frame was “in and affecting interstate commerce” would be sufficient for a conviction under this indictment. See United States v. Gresham, 118 F.3d 258, 265 (5th Cir. 1997) (finding that the “jurisdictional nexus of § 922(g)(1) may be satisfied by proof that the component part of the firearm traveled in interstate commerce, rather than the firearm itself’); see also United States v. Munoz, 150 F.3d 401, 417 (5th Cir.1998) (rejecting argument that indictment charging possession of 12-gauge sqwed-off shotgun in violation of § 922(g)(1) was constructively amended where evidence showed shotgun was 20-gauge). Broadnax’s reliance on United States v. Chambers, 408 F.3d 237 (5th Cir.2005), is misplaced. Chambers involved a § 922(g)(1) indictment for “knowingly possessing] in and affecting interstate commerce ammunition, to wit: 104 rounds of .40 caliber S&W jacketed hollow-point ammunition, distributed by the Houston Cartridge Company, which had been transported in interstate commerce .... ” Id. at 240. The evidence did not show that any of the completed rounds identified in the indictment had ever moved in interstate commerce, although there was evidence that some of the ammunition components had moved in interstate commerce. Id. at 239. The trial court instructed the jury to convict if it found that the defendant possessed ammunition, defined as “ammunition or cartridge cases, primers, bullets or propellant powders designed for use in any firearm,” that had, at some time, been in and affecting interstate commerce. Id. The government, relying on this instruction, argued in closing that the “in and effecting commerce element” could be proven by evidence that “the components, before they were assembled, crossed state lines.” Id. The jury convicted. On appeal, Chambers argued that the indictment was constructively amended by instructions which allowed conviction if component parts of the ammunition, as opposed to the specific"
},
{
"docid": "22787075",
"title": "",
"text": "We disagree. Section 922(g) makes it unlawful for people in specified categories “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Under existing circuit precedent, the Government may establish the requisite interstate commerce nexus by showing that a firearm was manufactured outside the state where the defendant possessed it. See United States v. Nathan, 202 F.3d 230, 234 (4th Cir.), cert. denied, 529 U.S. 1123, 120 S.Ct. 1994, 146 L.Ed.2d 819 (2000). There have been many constitutional challenges to § 922(g) since the Supreme Court decided United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In Lopez, the Court held that a statute prohibiting possession of a firearm within a school zone exceeded Congress’ power under the Commerce Clause because it “neither regulate[d] a commercial activity nor contain[ed] a requirement that the possession be connected in any way to interstate commerce.” Lopez, 514 U.S. at 551, 115 S.Ct. 1624. Courts have uniformly held that § 922(g) is constitutional under Lopez because it expressly requires proof of a nexus with interstate commerce. See United States v. Wells, 98 F.3d 808, 811 (4th Cir.1996) (citing cases). Gallimore’s claim differs from these Lopez challenges in two respects. First, he does not seek to invalidate § 922(g), but instead contends that the statute should be reinterpreted to enhance the Government’s burden. Second, as noted above, he relies on two post -Lopez decisions rather than on Lopez itself. According to Gallimore, these decisions require the Government to prove that a firearm possessed in violation of § 922(g) was involved in interstate commerce beyond mere transportation across state lines. We have already rejected similar claims arising under Lopez. See Nathan, 202 F.3d at 234; United States v. Crump, 120 F.3d 462, 466 n. 2 (4th Cir.1997). The two decisions cited by Gallimore, Jones and Morrison, do not undermine our prior holdings. Morrison did not modify the Lopez framework in any manner relevant to"
},
{
"docid": "7117781",
"title": "",
"text": "F.3d 443, 445 (8th Cir.1999). Here, the jury heard five individuals testify that Abernathy possessed the .410 shotgun, including Sam Shafer (the person who gave him the gun), Gordon Shafer (present when Abernathy received the gun), Jerome Abernathy and Robert Bialu-cha (present when Abernathy received the gun and who were threatened by Abernathy with the gun), and Rebecca (who fought with Abernathy over the gun and was also threatened with it). The jury credited their testimony, see United States v. Rayl, 270 F.3d 709, 713 (8th Cir.2001) (stating that the “issue of witness credibility is virtually unreviewable on appeal because it is preeminently the job of the finder of fact”) (internal quotation and citation omitted), and as such there was ample proof Abernathy possessed the firearm, though the shotgun was not entered into evidence. See, e.g., United States v. Baber, 161 F.3d 531, 532 (8th Cir.1998) (concluding that the evidence was sufficient to support a charge of carrying a firearm even though firearm not entered into evidence). Abernathy also argues his felon-in-possession conviction is invalid because there was no proof of a connection between the firearm and interstate commerce. He argues the shotgun was not used in commerce and did not have any affect on interstate commerce. We disagree. The jury was specifically instructed to determine whether the firearm had been transported across a state fine sometime prior to Abernathy’s possession. Sam Shafer testified the firearm had been purchased by his grandfather through Sears Roebuck in 1946 or 1947 and its place of manufacture was Massachusetts, which was stamped on the barrel next to the name. A Special Agent of the Bureau of Alcohol, Tobacco and Firearms testified as an expert in firearm origin that the shotgun was manufactured in Chicopee Falls, Massachusetts. This evidence satisfies § 922(g)(l)’s interstate commerce nexus. See United States v. Rankin, 64 F.3d 338, 339 (8th Cir.1995) (per curiam) (finding that the government’s evidence that a sawed-off shotgun possessed by a felon in Missouri was manufactured in New York satisfied § 922(g)(1)’s interstate commerce nexus). Abernathy also challenges the constitutionality of § 922(g)(1). This argument"
},
{
"docid": "12398989",
"title": "",
"text": "comports with the construction of this statute endorsed by two of our sister circuits. See United States v. Verna, 113 F.3d 499, 502-03 (4th Cir.1997); United States v. Mosby, 60 F.3d 454, 456-57 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 938, 133 L.Ed.2d 864 (1996). Accordingly, we join the majority of courts in holding that component parts are “firearms” for purposes of § 922(g)(1). The government offered the testimony of two expert witnesses to establish that the component parts of the pipe bomb had been manufactured outside Texas and had necessarily traveled in interstate commerce before being assembled by Gresham. Viewing this evidence in the light most favorable to the verdict, a reasonable jury could conclude that the component parts of the destructive device had traveled in interstate commerce. Therefore, because the component parts of a destructive device are “firearms,” for purposes of § 922(g)(1), the evidence was sufficient to support Gresham’s conviction under that section. V. Gresham argues that the district court erred in permitting the government to introduce hearsay testimony to demonstrate that the component parts of the bomb had traveled in interstate commerce. The government introduced the testimony of two expert witnesses, agents of the Bureau of Alcohol, Tobacco and Firearms (“ATF”), to satisfy the jurisdictional nexus element required by § 922(g)(1). It is firmly established in this circuit that such evidence is admissible to prove that a firearm was “in or affecting commerce” for purposes of § 922(g)(1). A. We review the admission of evidence for abuse of discretion. See United States v. Loney, 959 F.2d 1332, 1340 (5th Cir.1992). Our review, accordingly, is highly deferential. B. Gresham claims that the district court abused its discretion by permitting the government to offer hearsay testimony in order to satisfy the jurisdictional nexus required by § 922(g)(1). We have consistently stated, however, that “[pjroof of the interstate nexus to the firearm may be based upon expert testimony by a law enforcement officer.” United States v. Privett, 68 F.3d 101, 104 (5th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1862, 134 L.Ed.2d 960 (1996). Furthermore, it"
},
{
"docid": "23653888",
"title": "",
"text": "by him had previously traveled in interstate commerce, were insufficient to establish the required nexus to interstate commerce required by Lopez. We have already squarely rejected this argument in United States v. Shelton, 66 F.3d 991 (8th Cir.1995) (per curiam). “To satisfy the interstate commerce element of section 922(g), it is sufficient that there exists ‘the minimal nexus that the firearm[s] have been, at some time, in interstate commerce.’ ” Id. at 992 (quoting Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977)); see also United States v. Rankin, 64 F.3d 338, 339 (8th Cir.) (per curiam) (Government’s evidence that sawed off shotgun possessed by felon in Missouri was manufactured in New York satisfied section 922(g)(l)’s jurisdictional nexus), cert. denied, - U.S. -, 116 S.Ct. 577, 133 L.Ed.2d 500 (1995). As such, we find the application of section 922(g)(1) to Bates’s conduct eminently constitutional. B. Sufficiency of the Evidence Bates next attacks the sufficiency of the evidence underlying his conviction. Specifically, he alleges that the Government failed to prove that he actually possessed the firearm in question as opposed to merely owning it. He argues alternatively that he was the victim of entrapment. “In reviewing the sufficiency of the evidence on appeal, the court views the evidence in the light most favorable to the government, resolving evi- dentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury’s verdict.” United States v. Erdman, 953 F.2d 387, 389 (8th Cir.), cert. denied, 505 U.S. 1211, 112 S.Ct. 3009, 120 L.Ed.2d 883 (1992). “The jury’s verdict must be upheld if there is an interpretation of the evidence that would allow a reasonable-minded jury to conclude guilt beyond a reasonable doubt.” Id. We believe that there was sufficient evidence that Bates was in possession of the firearm in question. The dead ducks, the camouflaged netting, the decoys, the chest waders, the hunting apparel, the shotgun shells found on his person, Bates’s admitted ownership of the shotgun, and his initial admission that he had in fact been duck"
},
{
"docid": "6463449",
"title": "",
"text": "The district court sentenced Garrett to 110 months’ imprisonment on each count to be served concurrently. Garrett appeals his convictions. II. Sufficiency of the Evidence Garrett first challenges the sufficiency of the evidence to support the jury’s guilty verdict of both counts. We review a sufficiency of the evidence claim de novo, viewing the evidence in the light most favorable to the verdict and accepting all reasonable inferences supporting the verdict. United States v. Chapman, 356 F.3d 843, 847 (8th Cir.2004). We will reverse the verdict only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. United States v. Evans, 431 F.3d 342, 345 (8th Cir.2005). To convict Garrett under 18 U.S.C. § 922(g)(1), the government needed to prove: (1) Garrett had previously been convicted of a crime punishable by imprisonment of more than one year; (2) he knowingly possessed a firearm; and (3) the firearm had been in or affected interstate commerce. See United States v. Bradley, 473 F.3d 866, 867 (8th Cir.2007). Garrett stipulated that he had previously been convicted of a felony and that both firearms had traveled in interstate commerce. At issue is whether he knowingly possessed both weapons. To establish this element, the government could prove Garrett had actual or constructive possession of the firearm. See Evans, 431 F.3d at 345. “Constructive possession requires that the defendant ‘has dominion over the premises where the firearm is located, or control, ownership, or dominion over the firearm itself.’ ” Id. (quoting United States v. Maxwell, 363 F.3d 815, 818 (8th Cir.2004)). “Constructive possession may be established by circumstantial evidence alone, but the government must show a sufficient nexus between the defendant and the firearm.” Id. (citing United States v. Howard, 413 F.3d 861, 864 (8th Cir.2005)). A. Count One Garrett argues the government failed to present sufficient evidence of a nexus between him and the firearm found on the highway. For support, he relies on the testimony of his passenger, Sara Rivero, who stated that she did not see a weapon in the car. Rivero also testified that although she kept her"
},
{
"docid": "13521950",
"title": "",
"text": "photographs was manufactured in Korea); United States v. Koch, 625 F.3d 470, 479 (8th Cir.2010) (finding government had established that child pornography possessed by defendant on his computer and flash drive had been transported in interstate commerce or produced using such materials by showing that defendant’s computer and flash drive had been manufactured in China). Nonetheless, Napier argued during closing, and argues again on appeal, that the government must prove where the recipient of any particular email was physically located when the email transmission was received. This is not the relevant inquiry. The relevant inquiry is whether there is enough circumstantial evidence that these electronic communications were transmitted through interstate wires. Given the omnipresent nature of the Internet, this is not a difficult burden for the government to satisfy. See United States v. Mellies, 329 Fed.Appx. 592, 605-07 (6th Cir.2009); see also United States v. MacEwan, 445 F.3d 237, 244 (3d Cir.2006) (“[W]e conclude that because of the very interstate nature of the Internet, once a user submits a connection request to a website server or an image is transmitted from the website server back to user, the data has traveled in interstate commerce.”); United States v. Hilton, 257 F.3d 50, 54-55 (1st Cir.2001) (“[P]roof of transmission of pornography over the Internet ... satisfies the interstate commerce element of the offense,” which the government satisfied through testimony from a computer forensics agent that images had “likely” been downloaded from the Internet because the storage disk “contained software used in conjunction with Internet chat rooms.”); United States v. Runyan, 290 F.3d 223, 239 (5th Cir.2002) (joining the First Circuit in holding that “[transmission of photographs by means of the Internet is tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce”) (alteration in original) (internal quotation marks omitted); United States v. Harris, 548 Fed.Appx. 679, 682 (2d Cir.2013) (same); United States v. White, 2 Fed.Appx. 295, 298 (4th Cir.2001) (per curiam) (same). In the present case, we find that Napier’s use of the Internet, coupled with the varying timestamps indicated on his emails, is sufficient to satisfy"
},
{
"docid": "22787074",
"title": "",
"text": "closet behind other items, and five locked in a safe; it is unlikely that the woman encountered in Gallimore’s house acquired all seven firearms and distributed them around the property in this fashion in under 24 hours. In light of these circumstances, the evidence was sufficient to prove constructive possession. Cf. Jones, 204 F.3d at 543-44; United States v. Lawson, 682 F.2d 1012, 1017 (D.C.Cir.1982) (upholding conviction for possession of marijuana found in defendant’s apartment based on her presence in, and longtime occupancy of, the apartment, even though officers who found marijuana were admitted to the apartment by a codefendant while the defendant was in the bathtub). B. Gallimore’s second claim arises from two recent Supreme Court decisions concerning Congress’ power to regulate interstate commerce. See Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000); United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Gallimore contends that these decisions require proof of a greater nexus between firearms possession and interstate commerce than was demonstrated here. We disagree. Section 922(g) makes it unlawful for people in specified categories “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Under existing circuit precedent, the Government may establish the requisite interstate commerce nexus by showing that a firearm was manufactured outside the state where the defendant possessed it. See United States v. Nathan, 202 F.3d 230, 234 (4th Cir.), cert. denied, 529 U.S. 1123, 120 S.Ct. 1994, 146 L.Ed.2d 819 (2000). There have been many constitutional challenges to § 922(g) since the Supreme Court decided United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In Lopez, the Court held that a statute prohibiting possession of a firearm within a school zone exceeded Congress’ power under the Commerce Clause because it “neither regulate[d] a commercial activity nor contain[ed] a requirement that the possession be connected in any way to interstate commerce.” Lopez,"
},
{
"docid": "10530144",
"title": "",
"text": "necessarily travel in interstate commerce violated his due process rights because the government was required to prove interstate transmission as an element of the crime. The District Court instructed the jury: “Because of the interstate nature of the Internet, if you find beyond a reasonable doubt that the defendant used the Internet in communicating a threat, then that communication traveled in interstate commerce.” Trial Tr. 126, Oct. 11, 2011. In United States v. MacEwan we explained the difference between interstate transmission and interstate commerce. 445 F.3d 237, 243-44 (3d Cir.2006). The defendant in MacEwan contended the government failed to prove he received child pornography through interstate commerce because a Comcast witness testified it was impossible to know whether a particular transmission traveled through computer servers located entirely within Pennsylvania, or to any other server in the United States. Id. at 241-42. “[W]e eonclude[d] that because of the very interstate nature of the Internet, once a user submits a connection request to a website server or an image is transmitted from the website server back to [the] user, the data has traveled in interstate commerce.” Id. at 244. “Having concluded that the Internet is an instrumentality and channel of interstate commerce.... [i]t is sufficient that MacEwan downloaded those images from the Internet, a system that is inexorably intertwined with interstate commerce.” Id. at 245. Elonis distinguishes MacEwan by stating that in that case the government presented evidence on how the internet worked. But the government’s evidence in MacEwan did not show that any one of the defendant’s internet transmissions traveled outside of Pennsylvania. We found that fact to be irrelevant to the question of interstate commerce because submitting data on the internet necessarily means the data travels in interstate commerce. Id. at 241. Instead, we held “[i]t is sufficient that [the defendant] downloaded those images from the Internet.” Id. at 245. Based on our conclusion that proving internet transmission alone is sufficient to prove transmission through interstate commerce, the District Court did not err in instructing the jury. IV. For the foregoing reasons we will uphold Elonis’s convictions under 18 U.S.C."
},
{
"docid": "22111359",
"title": "",
"text": "of a continuance at most prevented Williams from presenting some additional information to the jury about the nature and scope of Simmons’s problems. Because Williams was able to adequately explore this issue on cross-examination of Simmons and through the testimony of his expert witness, we simply cannpt conclude that Williams’s inability to impeach Simmons to a somewhat greater degree can be viewed as a violation of his constitutional rights. See Garman, 748 F.2d at 223 (concluding that denial of continuance sought to obtain testimony of two witnesses did not deprive defendant of his right to present a defense because “[t]here is nothing new in what defendant sought to present through the two witnesses”); Jordan, 466 F.2d at 101-02 (concluding that denial of a continuance to a defendant who had not been given the names of the witnesses who would testify for the prosecution until the day of trial did not violate the defendant’s Sixth Amendment confrontation rights because the defendant was able to impeach the credibility of the witnesses and any further impeachment “would have been cumulative”); see also United States v. Garcia, 854 F.2d 1280, 1284 (11th Cir.1988) (finding no abuse of discretion in denial of continuance where denial merely prevented defendant from presenting cumulative evidence). VI. Section 922(g) makes it unlawful for people in specified categories “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C.A. § 922(g). Williams contends that the government failed to present sufficient evidence of the interstate commerce element. This argument is without merit. The requisite connection to interstate commerce can be satisfied through proof that the firearm or ammunition is manufactured in one state and possessed in another. See United States v. Gallimore, 247 F.3d 134, 138 (4th Cir.2001) (“[T]he Government may establish the requisite interstate commerce nexus by showing that a firearm was manufactured outside the state where the defendant possessed it.”). The government presented expert testimony indicating that the 9-mm bullet that"
},
{
"docid": "9745150",
"title": "",
"text": "his conviction, Shambry filed a motion for an order granting a judgment of acquittal pursuant to Fed.R.Crim.P. 29, arguing that the evidence at trial was not sufficient to prove that he possessed the firearm in or affecting interstate commerce. The Court denied this motion, noting that through the introduction of expert testimony, the government established that the firearm was manufactured in Massachusetts and that it could not have been manufactured in New Jersey. Taken with the stipulated fact that Shambry possessed the firearm on October 18, 2002, in Camden, New Jersey, the logical inference was that the gun had necessarily traveled in interstate commerce at some point. The Court also noted that under United States v. Singletary, 268 F.3d 196 (3d Cir.2001), the transport of a weapon in interstate commerce, however remote in the past, gives its present intrastate possession a sufficient nexus to interstate commerce to fall within the ambit of Section 922(g)(1). The District Court then pointed out that in Singletary, there had been clear evidence that the firearm had been manufactured in Brazil and shipped to Texas via Georgia prior to somehow ending up in Pennsylvania where it was possessed by the defendant, but, in the instant matter, there was no proof of the firearm moving, only that it had been manufactured in Massachusetts and was possessed by Shambry in New Jersey. Looking to precedent in the First, Fifth, Ninth, Tenth, and Eleventh Circuits, the Court ultimately concluded that the government had, with the evidence outlined above, sufficiently proved that the firearm had been possessed “in or affecting” interstate commerce. On appeal, Shambry argues that the government’s evidence regarding whether the revolver had moved through interstate commerce was insufficient to sustain the verdict and that the search and seizure of the revolver by Officer Gramaglia were unconstitutional. II. Regarding the challenge to the sufficiency of the evidence, “we review the evidence in the light most favorable to the government as verdict winner,” United States v. Applewhaite, 195 F.3d 679, 684 (3d Cir.1999), and “[w]e must affirm the conviction[ ] if a rational trier of fact could have"
},
{
"docid": "22253718",
"title": "",
"text": "history as substantial as his own. Therefore, he “has not presented ‘some’ evidence tending to establish selective prosecution,” much less facts sufficient to create a reasonable doubt about the constitutionality of his prosecution. Accordingly, Jordan was not entitled to an evidentiary hearing or discovery on the claim, and his selective prosecution claim fails. Finally, we can discern no merit in Jordan’s constitutional challenge to 18 U.S.C. § 922(g)(1). Pursuant to Section 922(g)(1), it is unlawful for a convicted felon “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1). We have repeatedly held that Section 922(g)(1) is not a facially unconstitutional exercise of Congress’s power under the Commerce Clause because it contains an express jurisdictional requirement. See, e.g., United States v. Scott, 263 F.3d 1270, 1273 (11th Cir.2001) (per curiam). The jurisdictional requirement is satisfied when the firearm in question has a “minimal nexus” to interstate commerce. Id. at 1274. We have also held that Section 922(g)(1) was not unconstitutional as applied to a defendant who possessed a firearm only intrastate because the government demonstrated that the firearm in question “had travelled in interstate commerce.” United States v. McAllister, 77 F.3d 387, 390 (11th Cir.1996); see also United States v. Dupree, 258 F.3d 1258, 1260 (11th Cir.2001) (holding that brandishing a firearm that was manufactured in another state suffices to establish the required “minimal nexus to interstate commerce”). We are bound by prior panel decisions unless or until we overrule them while sitting en banc, or they are overruled by the Supreme Court. United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.2008) (per curiam). Here, the district court did not err in convicting Jordan of violating Section 922(g)(1). Jordan’s argument that Section 922(g)(1) is facially unconstitutional is foreclosed by our prior precedent. Scott, 263 F.3d at 1273. Jordan’s as-applied challenge to Section 922(g)(1) is also unavailing because the government introduced sufficient evidence to prove that the firearm was"
},
{
"docid": "13521949",
"title": "",
"text": "if not all, of the Victim 2 videos that Napier emailed were taken using a cellphone whose label indicated it was made in Taiwan (Counts 2-9). Courts have held that the use of materials manufactured outside of the United States is sufficient to establish an interstate nexus. See, e.g., United States v. Grzybowicz, 747 F.3d 1296, 1306-07 (11th Cir.2014) (finding sufficient evidence of the interstate commerce element of production and possession of child pornography offenses where defendant’s cellphone and laptop, which both contained pornographic images of children, were both manufactured outside the United States; the defendant took the pornographic images of the victim on his foreign-made cellphone; the defendant used the Internet to send the photographs to his email account; and the defendant downloaded at least two of the photographs onto his foreign-made computer); United States v. Strausbaugh, 534 Fed.Appx. 178, 184 (3d Cir.2013); cert. denied, — U.S. —, 135 S.Ct. 99, 190 L.Ed.2d 81 (2014) (finding sufficient evidence supported defendant’s conviction for possession of child pornography where the camera the defendant used to take photographs was manufactured in Korea); United States v. Koch, 625 F.3d 470, 479 (8th Cir.2010) (finding government had established that child pornography possessed by defendant on his computer and flash drive had been transported in interstate commerce or produced using such materials by showing that defendant’s computer and flash drive had been manufactured in China). Nonetheless, Napier argued during closing, and argues again on appeal, that the government must prove where the recipient of any particular email was physically located when the email transmission was received. This is not the relevant inquiry. The relevant inquiry is whether there is enough circumstantial evidence that these electronic communications were transmitted through interstate wires. Given the omnipresent nature of the Internet, this is not a difficult burden for the government to satisfy. See United States v. Mellies, 329 Fed.Appx. 592, 605-07 (6th Cir.2009); see also United States v. MacEwan, 445 F.3d 237, 244 (3d Cir.2006) (“[W]e conclude that because of the very interstate nature of the Internet, once a user submits a connection request to a website server"
},
{
"docid": "4376773",
"title": "",
"text": "and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), as calling into question whether the minimal nexus standard, which requires only that the firearm has traveled in interstate commerce at some time, sufficiently satisfies the interstate commerce element of § 922(g). See Scarborough v. United States, 431 U.S. 563, 575-78, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)(establishing minimal nexus standard). In United States v. Weems, 322 F.3d 18 (1st Cir.), cert. denied, 540 U.S. 892, 124 S.Ct. 233, 157 L.Ed.2d 167 (2003), we held that Jones does not alter Scarborough to require proof that the defendant transported the firearm in interstate commerce. Id. at 26. Every Circuit that has addressed the minimal nexus requirement after Morrison and Jones has also concluded that the nexus to interstate commerce is established if the firearm “has traveled at some time in interstate com merce.” United States v. Gaines, 295 F.3d 293, 302 (2d Cir.2002); see also United States v. Darrington, 351 F.3d 632, 634 (5th Cir.2003), cert. denied, 541 U.S. 1080, 124 S.Ct. 2429, 158 L.Ed.2d 994 (2004); United States v. Gallimore, 247 F.3d 134, 138 (4th Cir.2001). We likewise conclude that the evidence that a firearm has traveled at some time in interstate commerce is sufficient to establish a nexus between the firearm and interstate commerce. V. Wilkerson argues in a supplemental brief that, in light of the Supreme Court’s decision in United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), his sentence should be remanded to the district court. Wilkerson concedes that he did not preserve this issue in the district court, so our review is for plain error. United States v. Antonak-opoulos, 399 F.3d 68, 76 (1st Cir.2005). A determination of plain error is appropriate where “there [is] an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’ ” Id. at 77 (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). If those factors are met, we may correct the error only if it “seriously affects the fairness, integrity or public reputation"
},
{
"docid": "23021725",
"title": "",
"text": "government failed to meet its burden of proof with respect to the firearms charges. Constitutional challenges to a statute are reviewed de novo. See United States v. Morris, 247 F.3d 1080, 1085 (10th Cir.2001). “[I]n reviewing the sufficiency of the ■ evidence to support a jury verdict, this court must review the record de novo and ask only whether taking the evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.” United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir.1996) (quotations omitted). 1. Sufficiency of the Evidence Section 922(g) makes it a crime for a person convicted of a crime punishable by imprisonment for a term exceeding one year “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g). There was testimony at trial that the two weapons found in the possession of Defendant were manufactured outside of Oklahoma. A reasonable jury could have found beyond a reasonable doubt that this testimony established the effect on' interstate commerce required for a conviction under § 922(g); Defendant’s sufficiency of the evidence challenge is therefore rejected. 2. Constitutional Challenges Dependant also challenges the constitutionality of all three statutes under which he was convicted, arguing that they exceed Congress’ ability to regulate interstate commerce. The Supreme Court has “identified three broad categories of activity that Congress may regulate under its commerce power.” United States v.. Lopez, 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). First, Congress can regulate the use of the channels of interstate commerce. Second, Congress can regulate the instrumentalities of interstate commerce and persons or things in interstate commerce. Finally, Congress can regulate those activities that substantially affect interstate commerce. See id. at 558-59, 115 S.Ct. 1624. In United States v. Wacker this court rejected a constitutional challenge to"
}
] |
100079 | to the information before the issuing judge. United States v. Oregon-Cortez, 244 F.Supp.2d 1167, 1172 (D.Colo.2003). Under this analysis, a district court “examines de novo whether ‘a full and complete statement’ was submitted meeting § 2518(l)(c)’s requirements and reviews for an abuse of discretion the issuing judge’s conclusion under § 2518(3)(e) that the wiretaps were necessary.” Id.; accord Ramirez-Encarnacion, 291 F.3d at 1222 n. 1. In contrast to the first category of challenges to necessity, the second category of challenges proceeds under the framework of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and permits the district court to adduce evidence that was not before the issuing judge. Oregon-Cortez, 244 F.Supp.2d at 1171-72 n. 4; REDACTED However, to be entitled to such a hearing, a defendant must make a “substantial preliminary showing” that the affiant included a false statement in the wiretap affidavit, either knowingly and intentionally or with reckless disregard for the truth, and that this misstatement was necessary to the finding of probable cause or necessity. Id. A material omission in the wiretap affidavit may also qualify for a Franks hearing if the same requisite showing is made. United States v. Green, 175 F.3d 822, 828 (10th Cir.1999). In this case, I held hearings before the decisions in Ramirez-Encarnacion and Oregon-Cortez were published, which clarified when an evidentiary hearing on necessity is required. At the time of the hearings in this case, I still | [
{
"docid": "18173135",
"title": "",
"text": "necessity has been demonstrated in this case. 18 U.S.C. § 2518(3)(c). V. Subfacial Challenges to the Affidavits Under Franks v. Delaware The Tenth Circuit has held that where, as here, a defendant seeks to penetrate the Affidavit and assert a subfacial challenge to its truth on the grounds that the Affidavit used to secure the wiretap Order contained material misstatements or omissions of fact, the challenge proceeds under the framework for evaluating search warrants established by the Supreme Court in Franks v. Delaware. Ramirez-Encarnacion, 291 F.3d at 1223-24; Green, 175 F.3d at 828. Under Franks, a defendant is entitled to a hearing if he 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.” Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. In the event a hearing is held, the Defendant must establish, by a preponderance of evidence, that the misstatements in question were made intentionally or with reckless disregard for the truth and that, with the false statement omitted, probable cause was lacking. Id. at 156, 98 S.Ct. 2674. The Tenth Circuit has recognized that the Franks analysis applies not only to probable cause determinations but also as to whether “necessity” has been demonstrated in a given case. Ramirez-Encarnacion, 291 F.3d at 1223-24; Green, 175 F.3d at 828. Although the Franks decision did not define “reckless disregard for the truth,” the Tenth Circuit has indicated that “reckless disregard for the truth” occurred when “the affiant in fact entertained serious doubts as to the truth of his allegations.” Bruning v. Pixler, 949 F.2d 352, 357 (10th Cir.1991) (internal citations omitted); accord United States v. Clapp, 46 F.3d 795, 800 (8th Cir.1995) (“Courts, including our own, that have attempted to define reckless disregard for the truth have looked to what the affiant, ‘believed or appropriately accepted’ as true”). In addition, “[rjecklessness may be inferred from the omission of facts which are clearly critical” to the findings of the issuing"
}
] | [
{
"docid": "22052049",
"title": "",
"text": "the wiretaps Appellants argue that the district court erred in failing to suppress evidence gathered by the government through the wiretapping of the home phone lines of Fernandez (“Line 6”) and co-defendant Martinez (“Line 7”). Appellants claim that the wiretap applications contained false and misleading statements and omitted important information, so that probable cause would not have been established if the applications had been prepared properly. Appellants argue that, at a minimum, they made a sufficient showing of misrepresentations in the wiretap applications to require the district court to conduct a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Appellants further claim that the wiretap applications for the relevant phone lines failed to establish the “necessity” requirement set out in 18 U.S.C. § 2518(1)(e). “A district court’s denial of a motion to suppress evidence is reviewed de novo and underlying factual issues are reviewed for clear error.” United States v. Lynch, 367 F.3d 1148, 1159 (9th Cir.2004) (citation omitted). “We review de novo whether a full and complete statement of the facts was submitted in compliance with 18 U.S.C. § 2518(i)”. United States v. Blackmon, 273 F.3d 1204, 1207 (9th Cir.2001) (citation omitted). “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” reviewed de novo. United States v. Tham, 960 F.2d 1391, 1395 (9th Cir.1991). If a full and complete statement of facts was submitted, the court reviews the issuing judge’s decision that the wiretap was necessary for an abuse of discretion. Blackmon, 273 F.3d at 1207. Appellants filed or joined a number of separate motions at the district court challenging the validity of the wiretap applications for Lines 6 and 7, and for a cell phone used by Detevis (“Line 1”) to the extent that it provided the basis for the applications for Lines 6 and 7. The district court denied all the motions. The government applications for the three lines in question were supported by affidavits from FBI Special Agent David Olsen (“Olsen affidavits”)."
},
{
"docid": "6881211",
"title": "",
"text": "reveal the nature of the conversations. The only reason given that was specific to this particular investigation was that the suspects kept the trash container for the residence on the front porch, making it impossible for agents to search the garbage. Although some of these assertions might appear boilerplate, the fact that drug investigations suffer from common investigatory problems does not make these problems less vexing. Drug crime is necessarily harder to detect than other crimes because it is difficult to witness and does not create victims who are compelled to come forward and report the crime. Furthermore, agents preparing the affidavits supporting applications for electronic surveillance are not required to exhaust “all possible investigative techniques” before a court can issue an order authorizing interception of wire communications. U.S. v. Falls, 34 F.3d 674, 682 (8th Cir.1994). The necessity prong of § 2518(3)(c) is a finding of fact subject to a clearly eironeous standard of review. See U.S. v. Davis, 882 F.2d 1334, 1343 (8th Cir.1989). We find no error in the district court’s refusal to suppress the wiretap evidence based on a lack of necessity. C. Veracity of the Affidavit Although we find that the affidavit supporting the wiretap order is facially sufficient, a defendant may challenge an affidavit on the ground that the police included deliberate or reckless falsehoods under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct 2674, 57 L.Ed.2d 667 (1978), or deliberately or recklessly omitted material information under U.S. v. Reivich, 793 F.2d 957, 960 (8th Cir.1986). “In order to prevail on a challenge to a warrant affidavit under Franks, a defendant 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.” Gladney, 48 F.3d at 313. In order to be entitled to a hearing-under Franks the defendant must make a “substantial preliminary showing” of a false or reckless statement or omission and must also show that the alleged false statement or omission was necessary to the probable cause"
},
{
"docid": "21587493",
"title": "",
"text": "they argue that the district court erred by refusing to hold a hearing, pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, to determine whether the Government omitted material information from its wiretap applications. Second, they claim that by omitting that information, the Government violated the necessity requirement of Title III. Third, they argue that the information the Government did disclose was insufficient to establish the necessity of the wiretaps. And fourth, Edwards asserts that the Government unlawfully failed to name him in its March 11, 2011, wiretap affidavit. After setting forth the governing legal principles, we address each of these contentions in turn. A. A defendant may seek to suppress the evidence gathered as a result of wiretap surveillance under two different legal theories: she can argue that the wiretap violated her rights under the Fourth Amendment, or that the wiretap failed to comply with the requirements of Title III. Appellants argue both here. 1. Appellants’ Fourth Amendment claim is based on the Supreme Court’s decision in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674. Franks involved a defendant’s challenge to a warrant affidavit that, according to the defendant, contained false statements. Id. at 157-58, 98 S.Ct. 2674. The Court 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, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Id. at 155-56, 98 S.Ct. 2674. This court has thereafter referred to such hearings as “Franks hearings.” See, e.g., United States v. Maynard, 615 F.3d 544, 550-51 (D.C. Cir. 2010); United States v. Becton, 601 F.3d 588, 594 (D.C. Cir. 2010). To obtain a Franks hearing, a movant “must show that (1) the affidavit contained false statements; (2) the statements were material to the issue of probable cause; and (3) the false statements were made knowingly and intentionally, or with reckless disregard for the truth.” Becton,"
},
{
"docid": "19457231",
"title": "",
"text": "suppression motion based on errors in an application for a wiretap authorization: \"Under Franks [v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ] and its progeny, if a search warrant contains a false statement or omission, and the defendant makes a substantial preliminary showing (1) that the false statement or omission was knowingly and intentionally, or with reckless disregard for the truth, included by the government in a search warrant affidavit, (2) that the information was material, and (3) that with the affidavit's false or omitted material aside, the affidavit's remaining content is insufficient to establish probable cause , then the fruits of the search must be suppressed.\" United States v. Bianco , 998 F.2d 1112, 1125 (2d Cir. 1993) (citing Franks , 438 U.S. at 155-56, 98 S.Ct. 2674 ) (emphasis added). \"[T]o suppress evidence obtained pursuant to an affidavit containing erroneous information, the defendant must show that: (1) the claimed inaccuracies or omissions are the result of the affiant's deliberate falsehood or reckless disregard for the truth; and (2) the alleged falsehoods or omissions were necessary to the [issuing] judge's probable cause [or necessity] finding.\" [Rajaratnam , 719 F.3d] at 146 (internal quotation marks omitted). Lambus I , 221 F.Supp.3d at 331-32. Discussing the federal wiretap statute's \"own exclusionary rule,\" which had been addressed in United States v. Giordano , 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), the district court noted that the statute provides that no intercepted communications can be received in evidence in any trial ... if the disclosure of that information would be in violation of this chapter. 18 U.S.C. § 2515. The specific grounds for exclusion .... are that: (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval. 18 U.S.C. § 2518(10)(a).... Only violations of statutory requirements that \"play[ ] a substantive role with respect to judicial authorization of intercept orders and consequently impose[ ] a"
},
{
"docid": "18173192",
"title": "",
"text": "for relief by joining the motion of a Co-Defendant, the motion of the joining Defendant is disposed of in the same manner as those briefed and argued by counsel. . Defendant Thurman McKnight was subsequently dismissed from the conspiracy count on November 16, 2001, upon the Government’s motion to dismiss. . In United States v. Ramirez-Encarnacion, the court resolved a conflict of authority in the Tenth Circuit regarding the proper standard of review for a district court’s determination that a wiretap application satisfied the necessity requirement. 291 F.3d 1219 (10th Cir.2002). The decision provided, in pertinent part: [a]fter reviewing the relevant authority, we have concluded that the Armendariz court properly stated the standard of review: \"Although we examine de novo whether 'a full and complete statement' was submitted meeting section 2518(1)(c)'s requirements, we review the conclusion that the wiretap[ ][was] necessary in each situation for an abuse of discretion.” [United States v. Armendariz, 922 F.2d 602, 608 (10th Cir.1990) ] (quoting United States v. Brown, 761 F.2d 1272, 1275 (9th Cir.1985)). Id. at 1222, n. 1. The Government asserts that I should similarly review Judge Weinshienk’s conclusion that the wiretaps were necessary for an abuse of discretion. Because I find that the Government demonstrated a sufficient showing of necessity to meet either a de novo or an abuse of discretion standard, I need not address the Government’s, contention in this case. . A district court may properly limit its review of the issuing judge's necessity determination to the information that was before the issuing judge. United States v. Carrillo, 123 F.Supp.2d 1223, 1231 (D.Colo.2000); see also Mitchell, 274 F.3d at 1309 n. 1 (\"our determination of whether the district court erred in denying the motions to suppress is, as was the district court[’s], limited to the consideration of these affidavits”). . See discussion infra regarding the decision to not place an undercover officer in Club Mix in Section V, subsection A.2. . Further, Tenth Circuit decisions have extended the holding of Franlcs to cover both misstatements and material omissions from the affidavits. Green, 175 F.3d at 828; see Stewart v."
},
{
"docid": "15501858",
"title": "",
"text": "including the criminal enterprise itself. Each Application and Affidavit contained substantial factual information particular to the primary targets of the wiretaps. As to all three Applications, the court is satisfied that the required showing of necessity was made as to all Defendants. VI. Franks Issue Defendants argue that the Affidavits in support of the Applications suffer from material misrepresentations and omissions regarding the requirement under § 2518(l)(c) for “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” Specifically, Defendants argue that because Officer Akens stated that he has “not set forth each and every fact learned during the course of this investigation,” and because Officer Akens did not include certain facts, the affidavit was false and misleading. ' {See Government’s Exhibit 1 ¶ 12). Defendants assert that they are entitled to an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), 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"
},
{
"docid": "22195646",
"title": "",
"text": "at 3. B. In order to conduct electronic surveillance using a wiretap, federal law enforcement officials must secure authorization by making an application containing a “full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(l)(c). This statutory “necessity requirement” was designed to insure that “wiretapping is not resorted to in a situation in which traditional investigative techniques will suffice to expose the crime.” United States v. Alfano, 838 F.2d 158, 163 (6th Cir.1988). Generally, a district court’s finding that the requirements of § 2518(l)(c) have been met are afforded “considerable discretion.” United States v. Landmesser, 553 F.2d 17, 20 (6th Cir.1977). In Franks, the Supreme Court recognized a defendant’s right to challenge the sufficiency of a previously issued and executed warrant by attacking the statements made in an affidavit in support of the warrant. In order to obtain a hearing, the defendant must make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in the affidavit. Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. 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. at 171, 98 S.Ct. 2674. The defendant must specifically point to the disputed portions of the challenged affidavit, and must support these charges with an offer of proof. Id. If the defendant meets this burden, the court must then reconsider the affidavit without the disputed portions and determine whether probable cause still exists. If probable cause does not exist, the court must hold a full evidentiary hearing to determine whether the affidavit was properly submitted. In the instant case, law enforcement officials alleged that wiretap surveillance was the only investigative technique reasonably likely to establish the full scope of the alleged criminal enterprise. In a 100 page affidavit, they provided a tremendous amount of information supporting this claim, including a"
},
{
"docid": "23394992",
"title": "",
"text": "they were sentenced to mandatory terms of life imprisonment on Count I pursuant to 21 U.S.C. § 841(b)(1)(A). Lloyd and Woods each had one prior felony drug conviction and were sentenced to the statutory minimum term of 240 months’ imprisonment on Count I pursuant to the same provision. All four of these defendants also received concurrent sentences on their remaining counts of conviction. Murray, who was acquitted on Count I, was sentenced to concurrent sentences of 150 months and 48 months. III. DISCUSSION A. Motions to Suppress 1. Franks Challenges To obtain a wiretap pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the government must follow special procedures set forth in 18 U.S.C. §§ 2510-2522. See United States v. Green, 175 F.3d 822, 828 (10th Cir.1999). One requirement of the statute is that the government must present a written application to a federal judge establishing that the wiretap is necessary. 18 U.S.C. § 2518(1); Green, 175 F.3d at 828. Before granting the application, the judge must find that the affidavit establishes necessity by showing that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(3)(c); Green, 175 F.3d at 828. Small, Green, Lloyd, Woods, and Jones argue that the issuing judge’s finding of necessity was tainted by inaccurate and misleading statements in Special Agent Wilcox’s wiretap application and supporting testimony. This court reviews alleged misrepresentations and omissions in a wiretap application under the standard for challenges to search warrants developed by the Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See Green, 175 F.3d at 828. Under this standard, the defendant must show that any misstatements were made knowingly, intentionally, or recklessly, and that the erroneous information was material to the district court’s finding of necessity. Id. The defendant bears the burden of overcoming the presumption that the district court’s wiretap authorization was proper. Id. at 828-29. In response to appellants’ allegations of inaccuracies, the district"
},
{
"docid": "13794045",
"title": "",
"text": "their clients. Important policy considerations exist for not allowing defendants or their counsel to attend such hearings. United States v. Grisham, 748 F.2d 460, 464 (8th Cir.1984). No abuse of discretion exists in denying appellants’ request for greater involvement at the in-camera hearing. II. Appellants Fairchild and Pierce next request this court to vacate their convictions because the district court denied them a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978) to challenge the application of the wiretap order on VanBrocklin’s home. The standard of review is for an abuse of discretion, United States v. Hiveley, 61 F.3d 1358, 1360 (8th Cir.1995), but because Fairchild did not raise this argument before the district court, the standard of review for his claim is plain error. Fed.R.Crim.P. 52(b). A Franks hearing permits a challenge to the veracity of a search warrant affidavit. Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978). The defendant must meet two prongs under Franks to be entitled to a hearing. First, the defendant must make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, ...” Id. Second, the allegedly false statement must be necessary to the finding of probable cause. Id. at 156, 98 S.Ct. at 2676-77. At trial, the-government relied upon tape recorded conversations involving the appellants and obtained pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. Application for the wiretap was supported by an affidavit executed by FBI Agent Mark Terra. Prior to trial, Pierce challenged the order approving the wiretap and requested a Franks hearing. We have reviewed the district court’s thorough examination of this issue and conclude that the district court did not abuse its discretion by denying appellant Pierce’s request for a Franks hearing.’ United States v. Gruber, 908 F.Supp. 1451, 1468-1471 (N.D.Iowa, 1995). III. Appellants Fairchild and Leisinger argue that the district court admitted unduly prejudicial"
},
{
"docid": "18173136",
"title": "",
"text": "were made intentionally or with reckless disregard for the truth and that, with the false statement omitted, probable cause was lacking. Id. at 156, 98 S.Ct. 2674. The Tenth Circuit has recognized that the Franks analysis applies not only to probable cause determinations but also as to whether “necessity” has been demonstrated in a given case. Ramirez-Encarnacion, 291 F.3d at 1223-24; Green, 175 F.3d at 828. Although the Franks decision did not define “reckless disregard for the truth,” the Tenth Circuit has indicated that “reckless disregard for the truth” occurred when “the affiant in fact entertained serious doubts as to the truth of his allegations.” Bruning v. Pixler, 949 F.2d 352, 357 (10th Cir.1991) (internal citations omitted); accord United States v. Clapp, 46 F.3d 795, 800 (8th Cir.1995) (“Courts, including our own, that have attempted to define reckless disregard for the truth have looked to what the affiant, ‘believed or appropriately accepted’ as true”). In addition, “[rjecklessness may be inferred from the omission of facts which are clearly critical” to the findings of the issuing judge. Bruning, 949 F.2d at 357; see Carrillo, 123 F.Supp.2d at 1252. Finally, if a Defendant establishes by a preponderance of the evidence that the omissions or misstatements were made intentionally or with a reckless disregard for the truth, a reviewing court must engage in a “critical final step” to actually effect the suppression of evidence. United States v. Ozar, 50 F.3d 1440, 1446 (8th Cir.1995) The reviewing court must formally weigh whether the wiretap application, “corrected for any false statements and omissions, is sufficient to show probable cause” or necessity. Id.; accord, Green, 175 F.3d at 828. In this case, I conducted two separate evidentiary hearings, the first lasting four days and the second for one day. Although I did not conclude that the Defendants satisfied the threshold to compel a Franks hearing, the evidentiary hearings in this case provided ample opportunity for the Defendants to address all Franks type issues. Defendants were given the opportunity to cross-examine both Agent Wilcox and CS-1 regarding any purported misstatements or omissions in the wiretap Applications and"
},
{
"docid": "22185762",
"title": "",
"text": "attend the trial. We hold also that the district court did not abuse its discretion by imposing appropriate security measures. The district court’s security measures were eminently reasonable in light of the large number of defendants, the allegations of extraordinarily violent crimes committed by the defendants, and the Mexican Mafia’s history of using violent actions to disrupt the judicial process. Requiring members of the public to proceed through a metal detector, show identification, and sign a log-in form are similar to the security methods used in many government and private office buildings in this country. Ill Motions to Suppress the Wiretap and Videotape Evidence A. Wiretap Evidence On September 22, 1994, the district court authorized the interception of wire communications on J. Hernandez’s telephone. Various district judges subsequently approved seven applications for continued authority to maintain the wiretap. The subsequent applications incorporated a forty-five-page affidavit (“Affida-r vit”) submitted by FBI Agent Joseph C. Ways (“Agent Ways”) in support of the original wiretap. The wiretap terminated on May 2,1995. Appellants contend that the Affidavit did not satisfy the necessity requirement for issuing a wiretap. Appellants contend also that the district court erred by denying them a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to determine whether Agent Ways made false statements in the Affidavit. We disagree. We review motions to suppress de novo. United States v. Jones, 286 F.3d 1146, 1150 (9th Cir.2002). We review de novo whether the government submitted the requisite full and complete statement of facts in compliance with 18 U.S.C. § 2518(l)(c), and review for an abuse of discretion the district judge’s decision that the wiretap was necessary. United States v. Blackmon, 273 F.3d 1204, 1207 (9th Cir.2001). Moreover, we review de novo the district court’s denial of a Franks hearing, and review for clear error the district court’s underlying finding that the government did not intentionally or recklessly make false statements. United States v. Jordan, 291 F.3d 1091, 1099 (9th Cir.2002); United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir.2000). 1. The Affidavit To establish that"
},
{
"docid": "22886772",
"title": "",
"text": "exaggerated his urge to kill federal officers and destroy federal buildings. Graham sought but was denied an evi-dentiary hearing before the district court under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to assess the validity of the search warrant given these alleged misstatements and omissions. The district court noted that the statements at issue in paragraphs 42 and 43 were not false, and that the omitted statements occurred after Graham had confessed that he believed his phone had been tapped. The district court then determined that, even if the omitted material had been included, the magistrate judge would still have had probable cause to issue the search warrant. We review the district court’s denial of a Franks hearing under the same standard as for the denial of a motion to suppress: the district court’s factual findings are reviewed for clear error and its conclusions of law are reviewed de novo. United States v. Hill, 142 F.3d 305, 310 (6th Cir.1998). A defendant is entitled to a hearing to challenge the validity of a search warrant if he “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 [ ] the allegedly false statement is necessary to the finding of probable cause.” Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). If, at the evidentiary 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” suppressed. Id. at 156, 98 S.Ct. 2674. As to the allegedly misleading statements, the government argues that paragraphs 42 and 43 must be read in the context of paragraph 41, which reports that on June 7, 1997, the Cl was at a meeting at Metcalfs home where Metcalf showed the Cl a .50-caliber machinegun as"
},
{
"docid": "23394993",
"title": "",
"text": "the affidavit establishes necessity by showing that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(3)(c); Green, 175 F.3d at 828. Small, Green, Lloyd, Woods, and Jones argue that the issuing judge’s finding of necessity was tainted by inaccurate and misleading statements in Special Agent Wilcox’s wiretap application and supporting testimony. This court reviews alleged misrepresentations and omissions in a wiretap application under the standard for challenges to search warrants developed by the Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See Green, 175 F.3d at 828. Under this standard, the defendant must show that any misstatements were made knowingly, intentionally, or recklessly, and that the erroneous information was material to the district court’s finding of necessity. Id. The defendant bears the burden of overcoming the presumption that the district court’s wiretap authorization was proper. Id. at 828-29. In response to appellants’ allegations of inaccuracies, the district court held five days of hearings before issuing a written order denying the motions. See United States v. Small, 229 F.Supp.2d 1166, 1208 (D.Colo.2002). The court concluded that the allegedly false statements identified by appellants were either not inaccurate or were not made intentionally or with reckless disregard for the truth. Id. at 1191— 1203. The court further concluded that the identified statements were not material to the issuing court’s finding of necessity. Id. This court reviews the district court’s factual findings for clear error and its legal rulings de novo. Green, 175 F.3d at 829. a. Small’s Profits from Drug Sales Appellants first argue that Wilcox’s affidavit incorrectly stated that Small earned $18,000 per week selling crack cocaine. Wilcox derived the $18,000 figure from a taped conversation between Small and the confidential informant in which he believed he heard that figure used. At the suppression hearing, however, Wilcox admitted that his understanding of the conversation was incorrect. The government now concedes that what Small actually said was, if he could sell eighteen ounces of"
},
{
"docid": "19457230",
"title": "",
"text": "of supervisory authority, the court precluded the government from introducing evidence of conversations intercepted pursuant to the January 9, 2015 wiretap authorization. The court observed that the federal wiretap statute requires, inter alia , as follows: \"Each application shall include the following information: [...] (e) a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire, oral, or electronic communications involving any of the same persons, facilities or place specified in the application, and the action taken by the judge on each such application.\" Lambus I , 221 F.Supp.3d at 328 (quoting 18 U.S.C. § 2518(1)(e) (emphasis in Lambus I )). The court also noted that this Court in United States v. Rajaratnam , 719 F.3d 139 (2d Cir. 2013) (\" Rajaratnam\" ), cert. denied , --- U.S. ----, 134 S.Ct. 2820, 189 L.Ed.2d 785 (2014), had held it appropriate to apply the Franks v. Delaware standard in deciding a suppression motion based on errors in an application for a wiretap authorization: \"Under Franks [v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ] and its progeny, if a search warrant contains a false statement or omission, and the defendant makes a substantial preliminary showing (1) that the false statement or omission was knowingly and intentionally, or with reckless disregard for the truth, included by the government in a search warrant affidavit, (2) that the information was material, and (3) that with the affidavit's false or omitted material aside, the affidavit's remaining content is insufficient to establish probable cause , then the fruits of the search must be suppressed.\" United States v. Bianco , 998 F.2d 1112, 1125 (2d Cir. 1993) (citing Franks , 438 U.S. at 155-56, 98 S.Ct. 2674 ) (emphasis added). \"[T]o suppress evidence obtained pursuant to an affidavit containing erroneous information, the defendant must show that: (1) the claimed inaccuracies or omissions are the result of the affiant's deliberate falsehood or reckless disregard for the truth; and"
},
{
"docid": "22578724",
"title": "",
"text": "“misleading statements.” The District Court adopted the Magistrate Judge’s report and recommendation without discussion and entered an order denying Mr. Frederick’s motion to suppress. Here, Mr. Frederick reasserts his claim that “the Wiretap Affidavit contained misrepresentations or omissions which required suppression of the wiretap evidence.” Alternatively, Mr. Frederick argues that “at a minimum, [he] should have been afforded a full and fair ... [evidentiary] hearing” on this issue, pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). “In reviewing a district court’s ruling on a motion to suppress evidence, we review factual findings for clear error and the court’s application of law to those facts de novo.” United States v. Goddard, 312 F.3d 1360, 1362 (11th Cir.2002). “The facts are construed in the light most favorable to the prevailing party.” Id. “[I]n reviewing a denial of a motion to suppress, we review the entire record, including trial testimony.” United States v. Newsome, 475 F.3d 1221, 1224 (11th Cir.2007). Franks v. Delaware provides, in pertinent part, 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, 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 probable cause was lacking on the face of the affidavit. 438 U.S. at 155-56, 98 S.Ct. at 2676 (emphasis added). Mr. Frederick argues that three paragraphs of the forty-page warrant affi-. davit contained “misleading statements,” such that the wiretap evidence should have been suppressed. But Mr. Frederick has not explained how the purported misleading statements were"
},
{
"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": "22185763",
"title": "",
"text": "satisfy the necessity requirement for issuing a wiretap. Appellants contend also that the district court erred by denying them a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to determine whether Agent Ways made false statements in the Affidavit. We disagree. We review motions to suppress de novo. United States v. Jones, 286 F.3d 1146, 1150 (9th Cir.2002). We review de novo whether the government submitted the requisite full and complete statement of facts in compliance with 18 U.S.C. § 2518(l)(c), and review for an abuse of discretion the district judge’s decision that the wiretap was necessary. United States v. Blackmon, 273 F.3d 1204, 1207 (9th Cir.2001). Moreover, we review de novo the district court’s denial of a Franks hearing, and review for clear error the district court’s underlying finding that the government did not intentionally or recklessly make false statements. United States v. Jordan, 291 F.3d 1091, 1099 (9th Cir.2002); United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir.2000). 1. The Affidavit To establish that a wiretap is necessary, the application must provide a “full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(l)(c). The issuing judge must then determine whether “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(3)(e). The Affidavit averred that normal investigative procedures had been tried and failed, and reasonably appeared to be un likely to succeed or were too dangerous. The Affidavit stated that traditional investigative techniques were unlikely to “reveal the full nature and extent of the criminal activities of all of the major participants in [the Mexican Mafia] and to gather sufficient evidence to successfully prosecute the participants for the target offenses.” In addition, the Affidavit stated that the government had used seven cooperating individuals in the investigation who had provided “a wealth of information and"
},
{
"docid": "6881212",
"title": "",
"text": "to suppress the wiretap evidence based on a lack of necessity. C. Veracity of the Affidavit Although we find that the affidavit supporting the wiretap order is facially sufficient, a defendant may challenge an affidavit on the ground that the police included deliberate or reckless falsehoods under Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct 2674, 57 L.Ed.2d 667 (1978), or deliberately or recklessly omitted material information under U.S. v. Reivich, 793 F.2d 957, 960 (8th Cir.1986). “In order to prevail on a challenge to a warrant affidavit under Franks, a defendant 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.” Gladney, 48 F.3d at 313. In order to be entitled to a hearing-under Franks the defendant must make a “substantial preliminary showing” of a false or reckless statement or omission and must also show that the alleged false statement or omission was necessary to the probable cause determination. U.S. v. Fairchild, 122 F.3d 605, 610 (8th Cir.1997), cert. denied, Leisinger v. U.S., — U.S. -, 118 S.Ct. 1086, 140 L.Ed.2d 142 (1998). The “substantial preliminary showing” requirement needed to obtain a Franks hearing is not lightly met. U.S. v. Hiveley, 61 F.3d 1358, 1360 (8th Cir.1995). In this case the defendants presented evidence that the affidavit included statements made by Source One that the affiant either knew or should have known were false. Specifically the defendants allege that Source One in a subsequent interview declared that she had never personally seen any drugs at the residence that was to be tapped and that she never told agents that she had personally seen drugs. At least two paragraphs of the affidavit include statements that Source One had personally seen a defendant use crack cocaine and that she had seen two young women actually picking up cocaine from the residence that was to be wiretapped. The defendants assert that these false statements are material and that without their inclusion probable cause did not exist."
},
{
"docid": "18925316",
"title": "",
"text": "presented in this application have been asserted with respect to previous applications and do not warrant further discussion. However, defendants raise one new issue with respect to this application. 18 U.S.C. § 2518(l)(e) requires each application to contain a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application. Defendants point out that this application fails to mention the authorization of Orders A, B and J and the applications requesting those orders. The government represents that the omission of that information was an accidental clerical error. The court has not been presented with any evidence to the contrary and finds that the accidental noncompliance with § 2518(l)(e) does not vitiate the sufficiency of this application in meeting the statutory requirements, including the necessity requirement. II. Defendants’ Request for a Franks Hearing Re: § 2518(l)(c) Issues Defendants assert that they are entitled to an evidentiary hearing to adduce further evidence regarding the government’s representations in wiretap applications, and Judge Thompson’s and Judge Enright’s probable cause and necessity findings, as required in 18 U.S.C. § 2518(1)(c). In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1977), the Supreme Court held that a defendant is entitled to an evidentiary hearing upon a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, is included by an affiant in a warrant affidavit. If the reviewing court determines that the allegedly false statement is necessary to the finding of probable cause, a hearing is required. Despite this, if there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. Id. at 172, 98 S.Ct. at 2685. While the Franks decision only concerned the inclusion of false material in an affidavit, the Ninth Circuit has recognized that the Franks logic should extend to instances where the government’s affiant deliberately or in bad faith omits a material fact. See United States v. Ippolito, 774 F.2d at 1486-87 n. 1; United States v. Brooklier, 685 F.2d 1208, 1221 (9th"
},
{
"docid": "22052059",
"title": "",
"text": "by specific facts relevant to the particular circumstances of [the] case and would be true of most if not all narcotics investigations.” Id. Portions of the Olsen affidavits suffer from the same flaws emphasized in Blackmon: they include statements that are “nothing more than a description of the inherent limitations” of particular investigative techniques. Id. In the end, however, we cannot conclude that the district court abused its discretion in finding that the Olsen affidavits satisfied the necessity requirement set out in 18 U.S.C. § 2518(l)(c). This case is distinguishable from Blackmon because our holding in that case was premised on a finding that the affidavits supporting the wiretap applications were plagued by material misrepresentations and omissions. See Blackmon, 273 F.3d at 1209-10; see also Canales Gomez, 358 F.3d at 1225 (declining to apply Blackmon because no material omissions or misstatements were alleged in that case). As we explained above, Appellants have not shown that the Olsen affidavits suffered from material misrepresentations or omissions. We therefore affirm the district court’s decision not to suppress the wiretap evidence in this case. B. The district court’s failure to conduct a Franks hearing Appellants argue that the district court erred in failing to conduct a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). We review the district court’s denial of a Franks hearing de novo, but review the underlying factual findings of the district court regarding materiality under the clearly erroneous standard. United States v. Bennett, 219 F.3d 1117, 1124 (9th Cir.2000). A defendant is entitled to a Franks hearing where he or she makes “a substantial preliminary showing that a false statement was (1) deliberately or recklessly included in an affidavit submitted in support of a wiretap, and (2) material to the district court’s finding of necessity.” Shryock, 342 F.3d at 977 (citation omitted). As we have explained in the preceding sections, the district court properly rejected Appellants’ arguments that the Olsen affidavits contained material misstatements or omissions. The district court therefore did not err in denying Appellants’ request for a Franks hearing. IV. Outrageous"
}
] |
9801 | proposed sale was barred. Rather, the Bankruptcy Court held that the sale of debtor’s sole asset under § 363(b) was unwise in the instant case. Although § 363(b) accords bankruptcy judges broad discretion with respect to sales of a debtor’s assets, it must be remembered that § 363(b) sales that, in effect, render nugatory the procedural safeguards provided by Chapter 11 are the exception rather than the rule. Thus, a debtor seeking approval for such a sale bears the burden of articulating a sound business justification for departing from the normal procedure. See Lionel, 722 F.2d at 1070-72. Clear jurisdiction exists where the value of debtor’s estate will be impaired unless its assets are sold quickly. E.g., REDACTED Absent clear justification, however, it would seem unwise to second-guess a bankruptcy court’s refusal to approve a sale of substantial assets under § 363(b). See In re Coughlin, 27 B.R. 632, 635 (B.A.P. 1st Cir.1983) (“In considering the exercise of the bankruptcy court’s discretion, the reviewing court does not conduct a balancing test; if there is sound reason for the decision ... it does not matter that there are also sound reasons for the opposite result.”) (quoting In re Boston & Maine Corp., 618 F.2d 137, 141 (1st Cir.1980)). Crow contends the fact that the sale would have realized sufficient income to satisfy all claims against the estate constitutes a sound business justification. | [
{
"docid": "14206009",
"title": "",
"text": "only an emergency or imminent danger of loss can warrant the court’s approval of the consent to sell the assets of Liberty. We reject the argument of appellants, based on In re Solar Mfg. Corp., 176 F.2d 493 (3d Cir. 1949), that a § 116 (3) [11 U.S.C. § 516(3)] sale may be authorized only in an emergency or where there is imminent danger of loss to the corporation. The rationale of Solar has been rejected by the Fifth Circuit (In re Dania Corp., 400 F.2d 833, 836 (5th Cir. 1968) and has been criticized by commentators “as reflecting an overly restrictive view of the district court’s power to authorize the sale or lease of a corporate debtor’s property under 11 U.S.C. § 516(3).” In re Wonderbowl, Inc., 424 F.2d 178, 180 (9th Cir. 1970). See also, Oglebay, Some Developments in Bankruptcy Law, 24 Ref.J. 63, 64 (1950), quoted in 6 Collier, Bankruptcy (14th ed. 1969) ¶ 3.27, at 626-27 n. 25. Other circuits have recognized the power of the bankruptcy court under Chapter X to authorize a sale of the debt- or’s property under less than emergency conditions where such sale is necessary to avoid deterioration in the value of the assets. Frank v. Drinc-O-Matic, 136 F.2d 906 (2d Cir. 1943); In re Marathon Foundry & Machine Co., 228 F.2d 594 (7th Cir. 1955), cert. denied, 350 U.S. 1014, 76 S.Ct. 659, 100 L.Ed. 874 (1956). In the instant case, there were findings of fact that the market value of Liberty was likely to deteriorate in the near future, that it might be a very substantial decline and that the proposed sale would be in the best interest of the bankrupt estate. Based upon these findings, which are not clearly erroneous, the trial court could properly conclude that there was “cause shown” for the approval pursuant to 11 U.S.C. § 516(3). That decision was within the wide discretion granted the trial court and we will not substitute our judgment absent an abuse of discretion. In re Marathon Foundry & Machine Co., 228 F.2d at 598. Nor should the unresolved"
}
] | [
{
"docid": "9435164",
"title": "",
"text": "a hearing, may use, sell or lease, other than in the ordinary course of business, property of the estate.” 11 U.S.C. § 363(b). In determining whether to authorize the use, sale or lease of property of the estate under this section, courts require the debtor to show that a sound business purpose justifies such actions. See In re Delaware & Hudson Ry. Co., 124 B.R. 169, 176 (D.Del.1991); In re Lionel Corp., 722 F.2d 1063, 1071 (2d Cir.1983); In re Lady H Coal Co., Inc., 193 B.R. 233, 243 (Bankr.S.D.W.Va.1996); In re WBQ Partnership, 189 B.R. 97, 102 (Bankr.E.D.Va.1995); In re Indus. Valley Refrig. & Air Cond. Supplies, 77 B.R. 15, 21 (Bankr.E.D.Pa.1987). In evaluating whether a sound business purpose justifies the use, sale or lease of property under Section 363(b), courts consider a variety of factors, which essentially represent a “business judgment test.” See Collier on Bankruptcy § 363.02 (15th ed.1997). In In re Lionel Corp., the Court of Appeals for the Second Circuit listed several factors which a bankruptcy court may consider in its Section 363(b) analysis. Specifically confronted with the sale of assets under Section 363(b), the Second Circuit stated: In fashioning its findings, a bankruptcy judge must not blindly follow the hue and cry of the most vocal special interest groups; rather, he should consider all salient factors pertaining to the proceeding and, accordingly, act to further the diverse interests of the debtor, creditors and equity holders, alike. He might, for example, look to such relevant factors as the proportionate value of the asset to the estate as a whole, the amount of elapsed time since the filing, the likelihood that a plan of reorganization will be proposed and confirmed in the near future, the effect of the proposed disposition on future plans of reorganization, the proceeds to be obtained from the disposition vis-a-vis any appraisals of the property, which of the alternatives of use, sale or lease the proposal envisions, and most importantly perhaps, whether the asset is increasing or decreasing in value. 722 F.2d at 1071. In delineating these factors, the Second Circuit cautioned"
},
{
"docid": "23113827",
"title": "",
"text": "success in litigating the claim or for some other reason. But the record does not provide a sufficient basis for that conclusion. The record also fails to indicate what NOBA obtained through the settlement. It is clear that NOBA and FAMCO together obtain $5,000.00 through the stipulation and compromise but the division of that money between the estates is not specified. As I have stated before, to meet its burden the trustee must establish that the proposed compromise is in the best interests of the estate. In this case, the trustee has not presented sufficient evidence for a court to conclude that the compromise is in NOBA’s best interest. The Bankruptcy Court approved the compromise without a sufficient evidentiary basis for an independent assessment of its reasonableness. It was therefore an abuse of the Bankruptcy Court’s discretion to approve the settlement on the record before it. The finding that the compromise was in the best interest of the debtor was clearly erroneous. See, In re Ancor Exploration Co., 30 B.R. 802, 809 (N.D.Ok.1983) (remanding approval of asset sale to Bankruptcy Court because record indicate to approve the sale). Finally, appellant argues that the stipulated settlement was tantamount to an all asset sale of NOBA under 11 U.S.C. § 363(b), so that approval of the stipulation without the detailed procedural safeguards of a Chapter 11 reorganization was erroneous. The Bankruptcy Court rejected this argument, and I believe it was correct to do so. Section 363(b) of the Bankruptcy Code provides that the trustee may sell property of the estate other than in the ordinary course of business. However, it seems that a majority of courts faced with the issue have limited the power of the trustee to sell substantially all of the assets of the estate when no emergency exists under section 363(b), in order to maintain the code’s procedural safeguards, including that of meaningful disclosure under a plan of reorganization. See, e.g., In re Lionel Corp., 722 F.2d 1063 (2d Cir.1983); In re Brookfield Clothes, Inc., 31 B.R. 978 (S.D.N.Y.1983); In re White Motor Credit Corp., 14 B.R. 584 (Bankr.N.D.Ohio"
},
{
"docid": "23610021",
"title": "",
"text": "that would soon expire, with no source of alternative financing, and where the alternatives were either the proposed sale transaction or termination of business operations and liquidation). See also 3 Collier on Bankruptcy ¶363.02[3] (15th ed. rev.2009) (\"Collier ”) (While sales of substantial portions of a debtor’s assets under section 363 must be scrutinized closely by the court, \"[i]t is now generally accepted that section 363 allows such sales in chapter 11, as long as the sale proponent demonstrates a good, sound business justification for conducting the sale before confirmation (other than appeasement of the loudest creditor), that there has been adequate and reasonable notice of the sale, that the sale has been proposed in good faith, and that the purchase price is fair and reasonable.”). . There the issue involved the-debtor’s entitlement to the \"stamp-tax” exemption of Bankruptcy Code section 1146, after a 363 sale of the entirety of the debtor’s assets and confirmation of a plan distributing the proceeds of the earlier 363 sale. . 128 S.Ct. at 2331 n. 2 (emphasis added). . 722 F.2dat 1071. .Id. . Id. at 1071. . Id. . Id. (“This list is not intended to be exclusive, but merely to provide guidance to the bankruptcy judge.”); accord Iridium, 478 F.3d at 466 n. 21. . See Chrysler, 405 B.R. at 95-96. . Id. at 96. . Id. (citations omitted). . No. 07-10609(REG), ECF # 284. . No. 02-41729(REG). . See In re Adelphia Commc’ns Corp., 368 B.R. 140, 169 (Bankr.S.D.N.Y.2007) (\"Adelp-hia-Confirmation”) (describing the history). . Thus the Court needn’t spend extensive time in individualized discussion of each of the more specific factors articulated in Lionel, and by this Court, as aids in determining \"good business reason.” Where the proportionate value of the assets being sold is high, as they are here, Factor (a) (proportionate value of the assets to the estate as a whole) suggests that the situation be given close factual scrutiny — which the Court has attempted to do, in its rather lengthy Findings of Fact above — but at most Factor (a) tips only mildly against approval here."
},
{
"docid": "14815140",
"title": "",
"text": "requirement of justifying the proposed transaction. In re Lionel Corp., 722 F.2d 1063, 1071 (2d Cir.1983). That is, for the debtor-in-possession or trustee to satisfy its fiduciary duty to the debtor, creditors and equity holders, there must be some articulated business justification for using, selling, or leasing the property outside the ordinary course of business. Id. See also Matter of Baldwin United Corp., 43 B.R. 888, 906 (Bankr.S.D. Ohio 1984) (The debtor-in-possession “is required to justify the proposed [transaction] with sound business reasons”); Matter of St. Petersburg Hotel Assoc., Ltd., 37 B.R. 341, 343 (Bankr.M.D.Fla.1983) (Section 363 “also impliedly requires the Court to find that it is good business judgment for the Debtor to enter into” the transaction.). Whether the proffered business justification is sufficient depends on the case. As the Second Circuit held in Lionel, the bankruptcy judge should consider all salient factors pertaining to the proceeding and, accordingly, act to further the diverse interests of the debtor, creditors and equity holders, alike. He might, for example, look to such relevant factors as the proportionate value of the asset to the estate as a whole, the amount of elapsed time since the filing, the likelihood that a plan of reorganization will be proposed and confirmed in the near future, the effect of the proposed disposition on future plans of reorganization, the proceeds to be obtained from the disposition vis-a-vis any appraisals of the property, which of the alternatives of use, sale or lease the proposal envisions and, most importantly perhaps, whether the asset is increasing or decreasing in value. This list is not intended to be exclusive, but merely to provide guidance to the bankruptcy judge. 722 F.2d at 1071. See, e.g., Matter of Baldwin United Corp., 43 B.R. 888, 905-906 (Bankr.S.D.Ohio 1984). If the requirements in § 363(b) are satisfied, a proposed transaction is still subject to the requirements in 11 U.S.C. § 363(d) and (e). According to § 363(d), the use, sale or lease of estate property is authorized under § 363(b) “only to the extent not inconsistent with any relief granted under section 362(c), 362(d), 362(e)"
},
{
"docid": "2246075",
"title": "",
"text": "simply to an insider that has assured the Debtors’ CEO of future employment. The testimony and auction transcript reveal that around the same time that Mr. Bengochea placed the telephone call to Mr. Jackson, Acquisition submitted its final bid, after which it left the auction. Neither Acquisition nor any other party has provided an explanation for Acquisition’s departure. The conduct of Mr. Bengochea and the departure of Acquisition leave this court with the impression that Mr. Bengo-chea may have represented to Acquisition that it would be declared as the winning bidder, which it eventually was after a recess and an abrupt closing of the auction. While the court is without sufficient evidence to infer fraud on the part of Mr. Bengochea, the timing of the telephone call, the final Acquisition bid, and the closing of the auction cannot be ignored in light of the heightened scrutiny applied to insider transactions. Mr. Bengochea was, at the very least, reckless. In sum, although the auction was not as unfair as GBH insists, it was flawed. C. The Debtors Have Failed to Articulate a Sound Business Justification for the Sale to Any of the Bidders As noted above, this court concludes that the Debtors have committed mistakes in connection with the auction process. However, even when a bankruptcy court finds the presence of fraud, unfairness or mistake, it retains the “discretion to approve the sale should the estate be so desperate for a buyer that rejection of the offer would be devastating to creditors.” In re Embrace Sys., 178 B.R. at 124 (citation omitted). In order to approve a sale of substantially all of the Debtors’ assets outside the ordinary course of business pursuant to section 363(b), the court must find that the Debtors have articulated a sound business justification for the sale. Stephens Indus., Inc. v. McClung, 789 F.2d 386, 389-90 (6th Cir.1986) (citing Comm. of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063, 1070 (2d Cir.1983)). The Sixth Circuit has adopted the reasoning of Lionel and cited favorably to the following guidance from the Second Circuit:"
},
{
"docid": "1216042",
"title": "",
"text": "sale other than in the ordinary course of business.”); In re Embrace Sys. Corp., 178 B.R. 112, 123 (Bankr.W.D.Mich. 1995) (“A large measure of discretion is available to a bankruptcy court in determining whether a private sale should be approved. The court should exercise its discretion based upon 'the facts and circumstances of the proposed sale.” (citation omitted)). In Stephens Industries, the Sixth Circuit stated that “a bankruptcy court can authorize a sale of all of a Chapter 11 debtor’s assets under § 363(b)(1) when a sound business purpose dictates such action.” Stephens Indus., 789 F.2d at 390. Thus, when deciding whether to approve a § 363 sale, a court must “ ‘expressly find from the evidence presented before [it] at the hearing a good business reason to grant such an application [to sell].’” Id. at 389 (quoting Comm. of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063, 1071 (2d Cir.1983)). The party seeking approval of the sale bears the burden of demonstrating that there is a sound business purpose for the sale. See Lionel, 722 F.2d at 1071. The objecting party must “produce some evidence respecting its objections.” Id. The Lionel court provided a roadmap — which was followed by the Sixth Circuit in Stephens Industries — to guide bankruptcy courts when deciding whether there is a sound business purpose for a proposed sale: In fashioning its findings, a bankruptcy judge must not blindly follow the hue and cry of the most vocal special interest groups; rather, he should consider all salient factors pertaining to the proceeding and, accordingly, act to further the diverse interests of the debtor, creditors and equity holders, alike. He might, for example, look to such relevant factors as the proportionate value of the asset to the estate as a whole, the amount of elapsed time since the filing, the likelihood that a plan of reorganization will be proposed and confirmed in the near future, the effect of the proposed disposition on future plans of reorganization, the proceeds to be obtained from the disposition vis-a-vis any appraisals of the property,"
},
{
"docid": "13969074",
"title": "",
"text": "8013. We review the Bankruptcy Court’s conclusions of law, however, de novo. See In re Golf Course Builders Leasing, Inc., 768 F.2d 1167, 1169 (10th Cir.1985); In re Global Western Development Corporation, supra. SI contends that § 363(b)(1) does not permit a Chapter 11 trustee to liquidate ASC’s assets because such action would change a Chapter 11 reorganization, 11 U.S.C. §§ 1101-1146, into a Chapter 7 liquidation, 11 U.S.C. §§ 701-728. SI cites In re Brants Airways, Inc., 700 F.2d 935, reh’g denied, 705 F.2d 450 (5th Cir.1983), to support its position. In Braniff, the Fifth Circuit held that the district court could not approve, under § 363(b), a transaction providing for Braniff’s transfer of cash, airplanes and equipment, terminal leases and landing slots in exchange for travel scrip, unsecured notes, and a profit participation in the proposed operation. The court viewed the transaction as “in fact a reorganization.” Id. at 940. The Fifth Circuit, however, expressly reserved the question whether § 363(b) authorizes the sale of all of a debtor’s assets. Id. at 939. See also Richmond Leasing Co. v. Capital Bank, N.A., 762 F.2d 1303, 1311-12 n. 10 (5th Cir.1985). In In re Lionel Corporation, 722 F.2d 1063 (2d Cir.1983), the Second Circuit discussed the circumstances under which a bankruptcy judge can authorize, prior to the acceptance of and outside any plan of reorganization under Chapter 11, the sale of an important asset of the debtor’s estate, outside the ordinary course of business. After studying the statute’s predecessors, the legislative history surrounding the enactment of current Chapter 11 in 1978, and the statute’s underlying logic, the Second Circuit concluded “that there must be some articulated business justification ... for using, selling, or leasing property out of the ordinary course of business before the bankruptcy judge may order such disposition under section 363(b).” Id. at 1070. Accordingly, the court adopted a rule requiring that the bankruptcy judge “expressly find from the evidence presented before him at the hearing a good business reason to grant such an application.” Id. at 1071. Finally, the Second Circuit attempted to provide some guidance"
},
{
"docid": "2246076",
"title": "",
"text": "Debtors Have Failed to Articulate a Sound Business Justification for the Sale to Any of the Bidders As noted above, this court concludes that the Debtors have committed mistakes in connection with the auction process. However, even when a bankruptcy court finds the presence of fraud, unfairness or mistake, it retains the “discretion to approve the sale should the estate be so desperate for a buyer that rejection of the offer would be devastating to creditors.” In re Embrace Sys., 178 B.R. at 124 (citation omitted). In order to approve a sale of substantially all of the Debtors’ assets outside the ordinary course of business pursuant to section 363(b), the court must find that the Debtors have articulated a sound business justification for the sale. Stephens Indus., Inc. v. McClung, 789 F.2d 386, 389-90 (6th Cir.1986) (citing Comm. of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063, 1070 (2d Cir.1983)). The Sixth Circuit has adopted the reasoning of Lionel and cited favorably to the following guidance from the Second Circuit: In fashioning its findings, a bankruptcy judge must not blindly follow the hue and cry of the most vocal special interest groups; rather he should consider all salient factors pertaining to the proceeding and, accordingly, act to further the diverse interests of the debtor, creditors, and equity holders, alike. He might, for example, look to such relevant factors as the proportionate value of the asset to the estate as a whole, the amount of elapsed time since the filing, the likelihood that a plan of reorganization will be proposed and confirmed in the near future, the effect of the proposed disposition on future plans of reorganization, the proceeds to be obtained from the disposition vis-a-vis any appraisals of the property, which of the alternatives of use, sale or lease the proposal envisions and, most importantly perhaps, whether the asset is increasing or decreasing in value. This list is not intended to be exclusive, but merely to provide guidance to the bankruptcy judge. Id. at 389 (quoting In re Lionel Corp., 722 F.2d at 1071). The"
},
{
"docid": "14815139",
"title": "",
"text": "Institutional Creditors received in the approval of the leases. Because we are not yet convinced that there is authority for the leases, we decline to reach the second set of issues on this appeal. 11 U.S.C. § 363(b) TRANSACTIONS Given the novelty of CAL’s proposed use of 11 U.S.C. § 363(b), an overview of the relevant statutory and case law authority for the proposed transaction is in order. A debtor-in-possession under 11 U.S.C. § 1107 is authorized, absent court order otherwise, to operate the debtor’s business. 11 U.S.C. § 1108. Such a debtor-in-possession, “after notice and hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate.” 11 U.S.C. § 363(b). When a proposed use, sale, or lease of assets is outside the ordinary course of business, § 363(b) requires that the assets be property of the estate. What is included in property of the estate is determined by 11 U.S.C. § 541. We also agree with the Second Circuit that implicit in § 363(b) is the further requirement of justifying the proposed transaction. In re Lionel Corp., 722 F.2d 1063, 1071 (2d Cir.1983). That is, for the debtor-in-possession or trustee to satisfy its fiduciary duty to the debtor, creditors and equity holders, there must be some articulated business justification for using, selling, or leasing the property outside the ordinary course of business. Id. See also Matter of Baldwin United Corp., 43 B.R. 888, 906 (Bankr.S.D. Ohio 1984) (The debtor-in-possession “is required to justify the proposed [transaction] with sound business reasons”); Matter of St. Petersburg Hotel Assoc., Ltd., 37 B.R. 341, 343 (Bankr.M.D.Fla.1983) (Section 363 “also impliedly requires the Court to find that it is good business judgment for the Debtor to enter into” the transaction.). Whether the proffered business justification is sufficient depends on the case. As the Second Circuit held in Lionel, the bankruptcy judge should consider all salient factors pertaining to the proceeding and, accordingly, act to further the diverse interests of the debtor, creditors and equity holders, alike. He might, for example, look to such relevant factors as the"
},
{
"docid": "23448583",
"title": "",
"text": "to consider in deciding whether to approve or disapprove the use of estate property under 11 U.S.C. § 363(b): We also agree with the Second Circuit that implicit in § 363(b) is the further requirement of justifying the proposed transaction. In re Lionel Corp, 722 F.2d 1063, 1071 (2d Cir.1983). That is, for the debtor-in-possession or trustee to satisfy its fiduciary duty to the debtor, creditors and equity holders, there must be some articulated business justification for using, selling, or leasing the property outside the ordinary course of busi-ness_ Whether the proffered business justification is sufficient depends on the case. As the Second Circuit held in Lionel, the bankruptcy judge should consider all salient factors pertaining to the proceeding and, accordingly, act to further the diverse interests of the debtor, creditors and equity holders, alike. He might, for example, look to such relevant factors as the proportionate value of the asset to the estate as a whole, the amount of elapsed time since the filing, the likelihood that a plan of reorganization will be proposed and confirmed in the near future, the effect of the proposed disposition on future plans of reorganization, the proceeds to be obtained from the disposition vis-a-vis any appraisals of the property, which of the alternatives of use, sale or lease the proposal envisions and, most importantly perhaps, whether the asset is increasing or decreasing in value. This list is not intended to be exclusive, but merely to provide guidance to the bankruptcy judge. 780 F.2d at 1226. In this case, the debtor having drawn some $90,000 to the date of the hearing, did not show that it would be an exercise of good business judgment to permit him to continue to withdraw $10,000 per month from the alleged pension fund. Sunwest in contrast, has shown that a substantial asset of the estate may be jeopardized by continued withdrawals. The court properly exercised its discretion in denying the debtor further draws. CONCLUSION A. The bankruptcy court had authority under governing court rules to impose sanctions. The amount of sanctions was appropriate under the circumstances. Accordingly, the"
},
{
"docid": "14791274",
"title": "",
"text": "Debtors move for relief based on section 363(b)(1). Section 363(b)(1) of the Bankruptcy Code provides that debtors “may use, sell, or lease, other than in the ordinary course of business, property of the estate.” 11 U.S.C. § 363(b)(1). In approving a transaction conducted pursuant to section 363(b)(1), courts consider whether the debtor exercised sound business judgment. See In re Chateaugay Corp., 973 F.2d 141, 144-45 (2d Cir.1992) (finding that section 363(b) was applicable because sound business judgment supported the sale of assets); Comm. of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063, 1072 (2d Cir.1983) (holding that the application of section 363(b) must be supported by “some articulated business justification, other than appeasement of major creditors” and that “a judge determining a § 363(b) application [must] expressly find from the evidence presented before him at the hearing a good business reason to grant such an application”); In re Global Crossing Ltd., 295 B.R. 726, 743 (Bankr.S.D.N.Y.2003) (citing Lionel Corp, 722 F.2d at 1071) (emphasizing the business judgment standard). Although the Court is satisfied that the KERP Employees are not insiders under section 101(31), the KERP must still be analyzed under section 503(c)(3) because it is not an ordinary course transaction. See Nellson Nutraceutical, 369 B.R. at 803-04. Likewise, since the KEIP is not an ordinary course transaction and relates to compensation, it must also meet section 503(c)(3)’s standards. Section 503(c)(3) limits payments made to the Debtors’ employees outside of the ordinary course unless such payments are justified by “the facts and circumstances of the case.” 11 U.S.C. § 503(c)(3). Courts have held that the “facts and circumstances” language of section 503(c)(3) creates a standard no different than the business judgment standard under section 363(b). See Dana II, 358 B.R. at 576; Global Home Products, 369 B.R. at 783 (“If [the proposed plans are] intended to incentivize management, the analysis utilizes the more liberal business judgment review under § 363.”); Mesa Air Group, 2010 WL 3810899 at *4; In re Nobex Corp., No. 05-20050, 2006 WL 4063024, at *2 (Bankr.D.Del. Jan.19, 2006). In Dana II, Judge"
},
{
"docid": "14791273",
"title": "",
"text": "incentivizing, the size of the KEIP award is dependent on how quickly the Debtors emerge from bankruptcy. As the time spent in chapter 11 increases, KEIP bonus opportunities decrease. Thus, in addition to meeting the Incentives, payments are also keyed to meeting fairly aggressive time-based goals. The KEIP’s goals are also consistent with the policies underlying chapter 11. While an expeditious emergence from bankruptcy via a confirmed reorganization plan is the ultimate objective of most chapter 11 debtors, a section 363 going concern sale also achieves the chapter 11 goal of preserving businesses. See Bank of Am. Nat’l Trust & Sav. Ass’n. v. 203 N. La-Salle St. P’ship, 526 U.S. 434, 453, 119 S.Ct. 1411, 143 L.Ed.2d 607 (1999) (noting that the two basic purposes of chapter 11 are to preserve going concerns and maximize property available to satisfy the claims of creditors). Meeting these benchmarks is also beneficial to the estate because an expedited emergence will minimize administrative costs, thereby helping to maximize stakeholder value. D. The Debtors Have Exercised Sound Business Judgment The Debtors move for relief based on section 363(b)(1). Section 363(b)(1) of the Bankruptcy Code provides that debtors “may use, sell, or lease, other than in the ordinary course of business, property of the estate.” 11 U.S.C. § 363(b)(1). In approving a transaction conducted pursuant to section 363(b)(1), courts consider whether the debtor exercised sound business judgment. See In re Chateaugay Corp., 973 F.2d 141, 144-45 (2d Cir.1992) (finding that section 363(b) was applicable because sound business judgment supported the sale of assets); Comm. of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063, 1072 (2d Cir.1983) (holding that the application of section 363(b) must be supported by “some articulated business justification, other than appeasement of major creditors” and that “a judge determining a § 363(b) application [must] expressly find from the evidence presented before him at the hearing a good business reason to grant such an application”); In re Global Crossing Ltd., 295 B.R. 726, 743 (Bankr.S.D.N.Y.2003) (citing Lionel Corp, 722 F.2d at 1071) (emphasizing the business judgment standard). Although the"
},
{
"docid": "23610020",
"title": "",
"text": "meet differing circumstances.”); FNN, 980 F.2d at 169 (in considering sale outside of a plan of reorganization, “a bankruptcy judge must not be shackled with unnecessarily rigid rules when exercising the undoubtedly broad administrative power granted him under the [Bankruptcy] Code”); Gucci, 126 F.3d at 387 (\"A sale of a substantial part of a Chapter 11 estate ... may be conducted if a good business reason exists to support it.”); Iridium, 478 F.3d at 466 (“In this Circuit, the sale of an asset of the estate under § 363(b) is permissible if the judge determining [the] § 363(b) application expressly find[s] from the evidence presented before [him or her] at the hearing [that there is] a good business reason to grant such an application.”). . See, e.g., In re Decora Indus., No. 00-4459, 2002 WL 32332749, at *3 (D.Del. May 20, 2002) (Farnan, J.) (approving a 363 sale, finding a “sound business purpose” where \"the Court understands the precarious financial and business position of Debtors”; their only source of outside financing was a DIP facility that would soon expire, with no source of alternative financing, and where the alternatives were either the proposed sale transaction or termination of business operations and liquidation). See also 3 Collier on Bankruptcy ¶363.02[3] (15th ed. rev.2009) (\"Collier ”) (While sales of substantial portions of a debtor’s assets under section 363 must be scrutinized closely by the court, \"[i]t is now generally accepted that section 363 allows such sales in chapter 11, as long as the sale proponent demonstrates a good, sound business justification for conducting the sale before confirmation (other than appeasement of the loudest creditor), that there has been adequate and reasonable notice of the sale, that the sale has been proposed in good faith, and that the purchase price is fair and reasonable.”). . There the issue involved the-debtor’s entitlement to the \"stamp-tax” exemption of Bankruptcy Code section 1146, after a 363 sale of the entirety of the debtor’s assets and confirmation of a plan distributing the proceeds of the earlier 363 sale. . 128 S.Ct. at 2331 n. 2 (emphasis added)."
},
{
"docid": "23610019",
"title": "",
"text": "Comm. of Unsecured Creditors (In re Iridium Operating LLC), 478 F.3d 452 (2d Cir.2007) (\"Iridium \"). . Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., - U.S. -, 128 S.Ct. 2326, 2331 n. 2, 171 L.Ed.2d 203 (2008) (\"Piccadilly Cafeterias ”)■ . See Chrysler, 405 B.R. at 94-96. . Id. at 94. . 722 F.2d at 1069. . Id. . Id. . Id. . Id. . Id. . Id. at 1070 (emphasis added). . Id. at 1071, . Id. (emphasis added). . See Lionel; LTV, 973 F.2d at 143-44 (“In Lionel, we adopted a rule that 'requires that a judge determining a § 363(b) application expressly find from the evidence presented before him at the hearing a good business reason to grant such an application,’ ” and, quoting Lionel, reiterating that \"First and foremost is the notion that a bankruptcy judge must not be shackled with unnecessarily rigid rules when exercising the undoubtedly broad administrative power granted him under the Code,’’ and that \"a bankruptcy judge must have substantial freedom to tailor his orders to meet differing circumstances.”); FNN, 980 F.2d at 169 (in considering sale outside of a plan of reorganization, “a bankruptcy judge must not be shackled with unnecessarily rigid rules when exercising the undoubtedly broad administrative power granted him under the [Bankruptcy] Code”); Gucci, 126 F.3d at 387 (\"A sale of a substantial part of a Chapter 11 estate ... may be conducted if a good business reason exists to support it.”); Iridium, 478 F.3d at 466 (“In this Circuit, the sale of an asset of the estate under § 363(b) is permissible if the judge determining [the] § 363(b) application expressly find[s] from the evidence presented before [him or her] at the hearing [that there is] a good business reason to grant such an application.”). . See, e.g., In re Decora Indus., No. 00-4459, 2002 WL 32332749, at *3 (D.Del. May 20, 2002) (Farnan, J.) (approving a 363 sale, finding a “sound business purpose” where \"the Court understands the precarious financial and business position of Debtors”; their only source of outside financing was a DIP facility"
},
{
"docid": "8309018",
"title": "",
"text": "provision of § 503(b). The Debtor argues that an expeditious approval of the instant motion is essential as it constitutes the center-piece of the Debtor’s proposed plan of reorganization and a failure to expedite the approval will result in a deterioration of the value of the subject assets. That argument was advanced in a similar case heard by the Second Circuit which enunciated the “business justification” test for the approval of pre-confirmation sales under § 363(b). In re Lionel Corp., 722 F.2d 1063 (2d Cir.1983). That particular test requires the court to make an express finding from the evidence of a sound business reason before the pre-confirmation sale can be approved. Although the instant matter does not require a present ruling to authorize or confirm a sale, the court in Lionel rejected the view that a preconfirmation sale of a substantial asset is permitted only in an emergency or where the asset is deteriorating in value. It further held, on the other hand, that § 363(b) does not give the Bankruptcy Court unbridled authority to approve a pre-confirmation sale outside the safeguards embodied in Chapter 11. Id. at 1069-71. See also, In re Hunt Energy, 48 B.R. 472, 485 (Bankr.N.D.Ohio 1985). Both concerns have been considered in reaching a resolution of the Debtor's motion. As such, the $100,000.00 would not be entitled for payment as an administrative expense. For these reasons, the Debtor’s motion seeking authority to enter into the letter of intent to sell assets outside the ordinary course of business is hereby denied. Should the Debtors and Dreison be willing to renegotiate their agreement to conform with the deficiencies noted herein, the matter will be reconsidered upon application. Accordingly, the objections of the Creditors Committee and of SBSA are hereby sustained, in part, and overruled in part. IT IS SO ORDERED. . \"Negotiated Acquisitions: The Impact of Competition in the U.S.,\" by Leo Herzel and Richard W. Shepro, The Business Lawyer, Vol. 44, No. 2 (February, 1989). . Cottle v. Storer Communication, 849 F.2d 570, 578-79 (11th Cir.1988); CRTF Corp. v. Federated Dept. Stores, 683 F.Supp. 422, 440"
},
{
"docid": "1216041",
"title": "",
"text": "interest. The Assets consist of the litigation claims against TCO that are pend ing in the State Court case. The sale of estate property under § 368 “is not restricted to tangible personalty.” In re Dow Corning Corp., 198 B.R. 214, 247 (Bankr.E.D.Mich.1996). Rather, § 363(a) contemplates “that many forms of intangible personalty are included within the trustee’s power to use, sell, or lease property of the estate.” Id. What constitutes the kind of property a trustee may sell under § 363 is very broad in scope and “include[s] a trustee’s alienation of a chose in action....” Id. Thus, a debtor’s sale of litigation claims, such as the assets to be sold under the APA, is permissible. Determining whether a sale should be approved under § 363 “falls within the sound discretion of the trial court.” Stephens Indus., Inc. v. McClung, 789 F.2d 386, 388 (6th Cir.1986) (internal quotation marks omitted). See also In re New Era Resorts, LLC, 238 B.R. 381, 387 (Bankr.E.D.Tenn.1999) (“[T]he court has broad discretion in determining whether to approve a sale other than in the ordinary course of business.”); In re Embrace Sys. Corp., 178 B.R. 112, 123 (Bankr.W.D.Mich. 1995) (“A large measure of discretion is available to a bankruptcy court in determining whether a private sale should be approved. The court should exercise its discretion based upon 'the facts and circumstances of the proposed sale.” (citation omitted)). In Stephens Industries, the Sixth Circuit stated that “a bankruptcy court can authorize a sale of all of a Chapter 11 debtor’s assets under § 363(b)(1) when a sound business purpose dictates such action.” Stephens Indus., 789 F.2d at 390. Thus, when deciding whether to approve a § 363 sale, a court must “ ‘expressly find from the evidence presented before [it] at the hearing a good business reason to grant such an application [to sell].’” Id. at 389 (quoting Comm. of Equity Sec. Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063, 1071 (2d Cir.1983)). The party seeking approval of the sale bears the burden of demonstrating that there is a sound business purpose"
},
{
"docid": "17550524",
"title": "",
"text": "that the Debtors can and will propose a confirmable plan for the Fixed/Floating Debtors-and for the Excluded Debtors -in the very near term. III. Decision on the Motion I will now turn to the ruling on the Motion before the Court. The standards applicable to a motion of this character appear in numerous decisions issued by courts in this Circuit, most significantly (i) the Second Circuit's decision in In re Lionel Corp., 722 F.2d 1063, 1071 (2d Cir.1983); (ii) the District Court's opinion in In re Integrated Resources, 147 B.R. 650 (S.D.N.Y.1992), and (iii) the Bankruptcy Court's decision in In re Global Crossing, 295 B.R. 726 (Bankr.S.D.N.Y.2003), in which Judge Gerber discussed the decisions in Lionel and Integrated Resources. In each of these decisions, the courts have applied a business judgment test to evaluate whether a sound business purpose justifies the use, sale, or lease of property under section 363 of the Bankruptcy Code. In Lionel, the Court of Appeals for the Second Circuit held that a proposed sale under section 363(b) of the Bankrupt cy Code outside of a plan of reorganization should only be approved if the proponents of the sale present “some articulated business justification, other than appeasement of major creditors.” In Integrated Resources, Judge Mukasey concluded that business judgment rule’s presumption shields corporate decision makers and their decisions from judicial second-guessing only when the following elements are present: (i) a business decision, (ii) disinterestedness, (iii) due care, (iv) good faith, and (v) according to some courts and commentators, no abuse of discretion or waste of corporate assets. I note that today I evaluate only the Debtors’ business decision in seeking approval of the stalking horse bid set forth in the final commitment letter, the Bidding Procedures, and the other relief requested in the Motion; plan confirmation issues are not before the Court and all parties’ rights are reserved in that regard. The Court finds that the Debtors have appropriately exercised their business judgment in determining to enter into .the Final Five Mile/Lehman Bid and to propose the revised Bidding Procedures. The Debtors have successfully modified the"
},
{
"docid": "11717859",
"title": "",
"text": "512-13, 104 S.Ct. 1949, 1966, 80 L.Ed.2d 502 (1984) (citation omitted) (‘When the testimony of a witness is not believed, the trier of fact may disregard it. Normally the discredited testimony is not considered a sufficient basis for drawing a contrary conclusion.”); accord Duddy v. Kitchen & Bath Distribs. (In re H.J. Scheirich Co.), 982 F.2d 945 (6th Cir.1993). Even when a bankruptcy court finds unfairness or bad faith, it retains “discretion to approve the sale should the estate be so desperate for a buyer that a rejection of the offer would be devastating to creditors.” Blue Coal Corp., 168 B.R. at 569. Although the Creditors’ Committee supports the proposed sale, and its counsel characterizes the sale as an “option” being granted to Eco, no such compelling desperation now exists. First, Eco has no present ability to pay the $50,000 downstroke required by the Amended License Agreement. Second, the court has found Eco’s future business projections, and its ability to adequately capitalize itself, to manufacture product, and to generate profits, to be illusory, and perhaps verging on being fictitious. If the Amended License Agreement is not approved, creditors will lose nothing. To the contrary, if the assets are later sold to someone who has a demonstrable ability to pay, the estate will receive something. 3. Special Considerations Regarding Chapter 11 Sales. An issue exists under what circumstances a bankruptcy court may authorize a sale of all, or a major portion of, a chapter 11 debtor’s assets outside a plan of reorganization. In this circuit, “a bankruptcy court can authorize a sale of all a chapter 11 debtor’s assets under § 363(b)(1) when a sound business purpose dictates such action.” Stephens Indus., Inc. v. McClung, 789 F.2d 386, 390 (6th Cir.1986). In this contested matter, the Stephens case is applicable and supplements the general considerations relating to approval of sales outside the ordinary course. See Discussion Part IV.B.2. supra. In Stephens, the Sixth Circuit explicitly adopted the reasoning of Committee of Equity Security Holders v. Lionel Corp. (In re Lionel Corp.), 722 F.2d 1063 (2nd Cir. 1983). In Lionel, the relevant"
},
{
"docid": "8309017",
"title": "",
"text": "of the Code, however, only allows payment of administrative expense claims which are for “actual” expenses incurred that were also beneficial to a debtor’s estate. Further, the literal language of § 503(b)(3) and its legislative history require a “creditor” as the applicant for an administrative expense allowance. See, H.Rep. No. 95-595, to accompany H.R. 8200, 95th Cong., 1st Sess. (1977) p. 355. As indicated above, Dreison is not a creditor of the Debtor’s estate and, otherwise, its assertion of unforeseen and unspecified liquidated damages (Letter of Intent, para. 10) is insufficient to establish that Dreison has conferred a substantial benefit to the Debtor’s estate to warrant an administrative expense allowance. See, In re The Frog and Peach, Ltd., 38 B.R. 307 (Bankr.N.D.Ga.1984). As unspecified liquidated damages, the subject break-up fee fails to meet this standard of § 503. A break-up fee should not be authorized as an administrative expense where it is ill-defined, not correlated to an actual transactional cost or expense incurred by the negotiating bidder, and otherwise cannot be addressed under a specific provision of § 503(b). The Debtor argues that an expeditious approval of the instant motion is essential as it constitutes the center-piece of the Debtor’s proposed plan of reorganization and a failure to expedite the approval will result in a deterioration of the value of the subject assets. That argument was advanced in a similar case heard by the Second Circuit which enunciated the “business justification” test for the approval of pre-confirmation sales under § 363(b). In re Lionel Corp., 722 F.2d 1063 (2d Cir.1983). That particular test requires the court to make an express finding from the evidence of a sound business reason before the pre-confirmation sale can be approved. Although the instant matter does not require a present ruling to authorize or confirm a sale, the court in Lionel rejected the view that a preconfirmation sale of a substantial asset is permitted only in an emergency or where the asset is deteriorating in value. It further held, on the other hand, that § 363(b) does not give the Bankruptcy Court unbridled authority to"
},
{
"docid": "4652027",
"title": "",
"text": "exercise of reasonable business judgment and is in the best interest of Eastern’s estate. A) THE LIONEL TEST. The main objection raised by the ALPA, TWU and IAM, (collectively, the “Unions”), is that the sale of the Shuttle operation is part of Eastern’s overall “creeping” plan of reorganization and therefore the sale may not be consummated prior to the acceptance and outside of any plan of reorganization. Thus, relying on In re Lionel Corp., 722 F.2d 1063 (2d. Cir.1983), the Unions argue that it is premature for this Court to approve the proposed Shuttle sale. In Lionel, the Second Circuit stated the issue as follows: The issue now before this court is to what extent Chapter 11 permits a bankruptcy judge to authorize the sale of an important asset of the bankrupt’s estate, out of the ordinary course of business and prior to acceptance and outside of any plan of reorganization. 722 F.2d at 1066. The Court then focused on § 363(b) of the Code which provides that “[t]he Trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate.” 11 U.S.C. § 363(b). The Court stated that “[o]n its face, Section 363(b) appears to permit disposition of any property of the estate of a corporate debtor without resort to the statutory safeguards embodied in Chapter 11 of the Bankruptcy Code....” Lionel, 722 F.2d at 1066. However, the Court concluded that based upon an “analysis of the statute’s history and over seven decades of case law convinces us that such a literal reading of Section 363(b) would unnecessarily violate the congressional scheme for corporate reorganizations.” Id. Thus, the Second Circuit held as follows: [TJhere must be some articulated business justification, other than appeasement of major creditors, for using, selling or leasing property out of the ordinary course of business before the bankruptcy judge may order such disposition under Section 363(b). Id. at 1070. The Court emphasizing the need for disclosure before a debtor will be allowed to circumvent the safeguards of Chapter 11 by a § 363(b) sale"
}
] |
479747 | "met with a co-defendant to persuade him to plead guilty. That co-defendant, as well as two others, decided to plead guilty shortly thereafter. . Had Floyd been convicted of all charges set forth in the indictment, she would have faced a potential Guidelines range of 292 to 365 months, as compared to the 60-month statutory maximum she faced on the drug trafficking charge. . The District Court also stated that ""I departed downward approximately 12.5 percent from the original sentence, and that also reflects a departure in the offense level. A departure of 10 percent results in a guideline range of 36.9 to 45.9 months. 12 percent would be slightly more than that.” (Id. at 56.) . For example, in REDACTED we held that a district court did not err in failing to engage in a ""ratcheting” procedure applicable to upward departures because it imposed an above-Guidelines sentence as a variance, not a departure. Id. at 99 & n. 8. Moreover, in Vampire Nation, we held that the notice requirement for upward departures would not apply to variances. 451 F.3d at 197; see also Fed. R.Crim. Pro. 32(h). Importantly, we observed in Vampire Nation that sentencing courts should ""be careful to articulate whether a sentence is a departure or a variance from an advisory Guidelines range,"" 451 F.3d at 198, and we have noted that this terminology ""aid[s] our review of criminal sentences.” Jackson, 467 F.3d at 837 n. 2. .We note" | [
{
"docid": "11760054",
"title": "",
"text": "being released from state prison Colon resumed his illegal drug trafficking. Furthermore, the court viewed it as likely that, when released, Colon would go back into the narcotics business. ’Notwithstanding the court’s concern regarding Colon’s history and prospects, it would not treat Colon as a career offender. Thus, though the court would not limit the sentence to the statutory mandatory minimum of 120 months, it imposed a 180-month custodial term, a 50% increase over what the statute required but far less than the court would have imposed had it treated Colon as a career offender. Of course, inasmuch as a criminal history category of VI (the highest sentencing category that the guidelines provide) when applied to a total offense level of 25 yields a range of 110 to 137 months, the court imposed a sentence that was a departure beyond that yielded by any guideline sentencing category once it rejected using the career offender category for Colon. After Colon appealed, the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2581, 159 L.Ed.2d 403 (2004). That case, though arising under a state sentencing system, was significant in this federal prosecution as its reasoning cast doubt on the validity of the federal sentencing guidelines. Consequently, after Blakely, Colon moved in this court to amend his appeal so that he could assert a claim under that case. In response to his motion, we remanded the case for resen-tencing so that the district court initially could consider the application of Blakely. In remanding we directed that the district court should reconsider any upward departure by using the ratcheting procedure that we set forth in United States v. Kikumura, 918 F.2d 1084, 1110-19 (3d Cir.1990), though we did not cite that case. See also United States v. Hickman, 991 F.2d 1110, 1113-14 (3d Cir.1993). As it happened, however, before the district court resentenced Colon the Supreme Court decided Booker which changed the application of the federal guidelines from being mandatory to being advisory. As we recognized after Booker in United States v. Cooper, 437 F.3d 324, 331 (3d Cir.2006), sentences now must"
}
] | [
{
"docid": "21237617",
"title": "",
"text": "\"I departed downward approximately 12.5 percent from the original sentence, and that also reflects a departure in the offense level. A departure of 10 percent results in a guideline range of 36.9 to 45.9 months. 12 percent would be slightly more than that.” (Id. at 56.) . For example, in United States v. Colon, 474 F.3d 95 (3d Cir.2007), we held that a district court did not err in failing to engage in a \"ratcheting” procedure applicable to upward departures because it imposed an above-Guidelines sentence as a variance, not a departure. Id. at 99 & n. 8. Moreover, in Vampire Nation, we held that the notice requirement for upward departures would not apply to variances. 451 F.3d at 197; see also Fed. R.Crim. Pro. 32(h). Importantly, we observed in Vampire Nation that sentencing courts should \"be careful to articulate whether a sentence is a departure or a variance from an advisory Guidelines range,\" 451 F.3d at 198, and we have noted that this terminology \"aid[s] our review of criminal sentences.” Jackson, 467 F.3d at 837 n. 2. .We note that Floyd does not challenge the District Court's specific method for reducing her sentence on account of the departure motion. 'Post-Booker, § 5K1.1 continues to set out the considerations relevant to the “appropriate reduction.” See United States v. Torres, 251 F.3d 138, 146 (3d Cir.2001) (listing the factors to be considered). However, it does not specify the method by which to effectuate that reduction, and we have suggested that courts have latitude in choosing their methodology. United States v. Faulks, 143 F.3d 133, 137 n. 2 (3d Cir.1998). Indeed, we have reviewed § 5K1.1 departures effected by various methods. See, e.g., Torres, 251 F.3d at 151 (approving § 5K1.1 departure of one-month from bottom of calculated range); United States v. Casiano, 113 F.3d 420, 428, 431 (3d Cir.1997) (affirming § 5K1.1 departure of 3 offense levels, resulting in reduced range). Unlike § 5K1.1, other departure provisions refer explicitly to departing by means of a reduction in the applicable offense level or criminal history category. See U.S.S.G. § 5K3.1 (2003) (allowing"
},
{
"docid": "14320880",
"title": "",
"text": "her actions, three levels were deducted and Floyd’s offense level was determined to be thirty-five. Floyd’s criminal history placed her in Category VI. The PSR noted that “[h]ad the defendant been convicted as charged in the Indictment, she would have been facing a ... guideline range of 292 — 365 months.” PSR para. 56. In contrast, the statutory maximum sentence for the crime to which Floyd pled guilty, i.e., traveling or causing others to travel interstate to facilitate drug trafficking, is sixty months, as stated in the plea agreement. At the sentencing hearing, the Government chose not to recommend a downward departure from the sentencing guidelines. According to the Government, “Ms. Floyd’s sentencing guidelines range would have been 292 to 365 months but for the fact that she had a charge bargain.... [T]he charge bargain was obviously a very significant charge bargain here and [the Government] declined to authorize the motion for downward departure.” SuppApp. at 25. The District Court nonetheless did not accept the recommendation of the PSR that Floyd’s offense level was thirty-five. Instead, it found that Floyd’s offense level should be calculated based on a Criminal History Category of VI and a cocaine hydrochloride quantity of four to five ounces. This led to a Guidelines sentence of forty-one to fifty-one months, less than the sixty-month maximum prescribed in the plea agreement. As noted heretofore, she was sentenced to forty-eight months. II. On appeal, Floyd contends that the Government acted in bad faith by entering a plea bargain which contemplated a downward departure in exchange for assistance when the Government never intended to consider a downward departure. Floyd contends that because the Government knew or should have known that the sixty-month sentence was substantially less than the sentence she could have received at trial if she were found guilty of all the crimes for which she was indicted, the Government never had a good faith intention to evaluate the assistance she provided to determine if she merited a downward departure. Floyd also argues that the Government acted in bad faith by choosing not to recommend a downward departure"
},
{
"docid": "16994989",
"title": "",
"text": "not variances under an advisory guidelines system. The district court not only had authority to consider Quinlan’s past involvement with insolvent financial institutions in determining whether to impose an upward or downward variance after Booker, but it also had an obligation to do so. See 18 U.S.C. § 3553(a)(1) (requiring courts to consider the “circumstances of the offense and the history and characteristics of the defendant”) (emphasis added). Quinlan further argues that the district court violated the notice provisions of Rule 32(h) of the Federal Rules of Criminal Procedure in sentencing him. The courts of appeals are driven over whether Rule 32(h) applies to upward sentencing variances in the same way that it has always applied to upward sentencing departures. Compare United States v. Vampire Nation, 451 F.3d 189, 195-96 (3d Cir.2006) (holding that Rule 32(h) does not apply to sentencing variances); United States v. Walker, 447 F.3d 999, 1007 (7th Cir.2006) (same); United States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir.2005) (same); and United States v. Irizarry, 458 F.3d 1208, 1212 (11th Cir.2006) (same); with United States v. Davenport, 445 F.3d 366, 371 (4th Cir.2006) (holding that Rule 32(h) applies to sentencing variances); United States v. Evans-Martinez, 448 F.3d 1163, 1167 (9th Cir.2006) (same); and United States v. Dozier, 444 F.3d 1215, 1217-18 (10th Cir.2006) (same). In United States v. Cousins, 469 F.3d 572 (6th Cir. 2006), our court recently sided with the circuits holding that Rule 32(h) “applies equally to Chapter 5 departures and to § 3553(a) variances.” Id. at 580. The application of Rule 32(h) to Quin-lan’s sentencing, however, makes no difference here because the government satisfied its requirements. The rule says that “[b]efore the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s pre-hearing submission, the court must give the parties reasonable notice that it is contemplating such a departure.” (emphasis added). In both its sentencing memorandum and its amended sentencing mem orandum, the government put Quinlan and the court on notice that it was recommending a sentence of"
},
{
"docid": "2020402",
"title": "",
"text": "rehabilitative treatment. Accordingly, there was no error. III. We have considered all other arguments made by the parties on appeal, and conclude that no further discussion is necessary. For the foregoing reasons, we will affirm the judgment of sentence. . The PSR stated that Watson had at least sixteen prior adult criminal convictions. . The District Court explained its decision to impose a sentence below the Guidelines range both in terms of a downward departure under the Guidelines and a variance from the Guidelines in light of the factors listed in 18 U.S.C. § 3553(a). We do not have jurisdiction to review a District Court’s discretionary decision to deny a departure or appeals by defendants challenging the extent of a downward departure. United States v. Cooper, 437 F.3d 324, 332-33 (3d Cir.2006) (citations omitted). However, we will view this sentence as a variance from the Guidelines range, rather than a downward departure, since Watson did not file a motion for a downward departure and argued for a below-Guidelines range sentence in light of the § 3553(a) factors. See United States v. Vampire Nation, 451 F.3d 189 (3d Cir.2006). Accordingly, we have jurisdiction to review the imposition of this sentence for reasonableness. Cooper, 437 F.3d at 327. . These factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed- (A)to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to 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; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for— (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines (5) any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2) that is"
},
{
"docid": "11543930",
"title": "",
"text": "finds that a downward variance and an ultimate sentence of 210 months’ imprisonment is appropriate for Defendant. A sentence below 210 months’ imprisonment, however, would not adequately reflect the serious of Defendant’s offense, promote respect for the law or provide just punishment. A sentence below 210 months’ imprisonment would also create unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. See, e.g., United States v. Lazenby, 439 F.3d 928, 933-34 (8th Cir.2006). In light of all of the § 3553(a) factors, including those not specifically discussed in the instant Sentencing Memorandum, the court finds that a downward variance and an ultimate sentence of 210 months’ imprisonment is appropriate for Defendant. . B. Alternative Sentences In the event that the court is mistaken about the propriety or extent of an upward departure pursuant to § 5K2.21, and De fendant’s advisory Sentencing Guidelines range should be somewhere between the 78 to 97 months’ imprisonment range and less than 292 to 365 months’ imprisonment, the court would nonetheless exercise its discretion under Booker, vary upward, if necessary, and impose a sentence of 210 months’ imprisonment. The court so finds after considering the § 3553(a) factors. VII. CONCLUSION The court found that Defendant’s base offense level under the advisory Sentencing Guidelines was 26. USSG § 2D1.1(a)(3) and (c)(7). It found he was not entitled to a § 3E1.1 acceptance of responsibility reduction. Because Defendant was a Criminal History Category III, the court found that, before departures, Defendant’s advisory Sentencing Guidelines range was 78 to 97 months’ imprisonment. See USSG Sentencing Table. The court found Defendant’s case to be outside the “heartland” and decided to depart upward twelve levels to a range of 292 to 365 months’ imprisonment. The court decided a downward variance was appropriate, and, after analyzing the factors at 18 U.S.C. § 3553(a), decided that a sentence of 210 months’ imprisonment was a reasonable sentence. IT IS SO ORDERED. . On September 28, 2005, the grand jury charged Defendant in a two-count Indictment. It is not relevant here. . The underlying distribution was in violation"
},
{
"docid": "21237615",
"title": "",
"text": "to say that a 42-month sentence is necessarily unreasonable, or that the Court could not have reached that sentence. The Court, for example, could have departed below the 41 to 51 month range (at step 2), and then varied upward within the range by balancing the § 3553(a) factors (at step 3). We would review for reasonableness. Moreover, as we noted in Faulks, the Court could have “denied the motion for a departure and then gone on to acknowledge [Floyd’s] substantial assistance by sentencing lower in the guideline range than it would otherwise have done.” 143 F.3d at 137. Here, after assessing the factors under § 5K1.1, the Court stated that Floyd’s assistance “marginally [met] the criteria for a downward departure from the original sentence of 48 months.” (App.48.) From this statement, it is unclear whether the Court meant that Floyd’s assistance satisfied the requirements for a § 5K1.1 departure (thereby warranting consideration of a sentence below the Guidelines range), or if Floyd’s assistance warranted only a reduction within the range (but not a departure below it). Without speculating about the Court’s preferred course of action, we cannot determine which option it intended. III. Conclusion For the reasons stated, we vacate the sentence and remand for resentencing. . We previously recited a more detailed procedural history of this case in United States v. Floyd, 428 F.3d 513 (3d Cir.2005) (“Floyd I”). . Guidelines Section § 5K1.1 provides that the government may move for a downward departure when a defendant has provided \"substantial assistance in the investigation or prosecution of another person who has committed an offense.” U.S. Sentencing Guidelines Manual § 5K1.1 (2003). The day before entering her plea, Floyd met with a co-defendant to persuade him to plead guilty. That co-defendant, as well as two others, decided to plead guilty shortly thereafter. . Had Floyd been convicted of all charges set forth in the indictment, she would have faced a potential Guidelines range of 292 to 365 months, as compared to the 60-month statutory maximum she faced on the drug trafficking charge. . The District Court also stated that"
},
{
"docid": "22434645",
"title": "",
"text": "notice must specify any ground on which the court is contemplating a departure. Rule 32(h) codified the Supreme Court’s statement in Bums that “before a district court can depart upward on a ground not identified as a ground for upward departure either in the presentence report or in a prehearing submission by the Government, Rule 32 requires that the district court give the parties reasonable notice that it is contemplating such a ruling.” Ill S.Ct. at 2187. The Court in Bums concluded that advance notice was required to ensure “full adversary testing of the issues relevant to a Guidelines sentence” and to fulfill Rule 32’s requirement that the parties have “an opportunity to comment upon ... matters relating to the appropriate sentence.” Id. at 2186. We conclude that the above-guidelines sentence imposed by the district court in this case was a variance, not a guidelines departure. The district court correctly calculated the advisory guidelines range. The court then considered the adequacy of this range in the light of the sentencing factors listed in 18 U.S.C. section 3553(a) and the evidence presented at the sentencing hearing. After concluding that the guidelines range did not adequately address the future risk Defendant posed to the public, see 18 U.S.C. section 3553(a)(2)(C), the court exercised its post-Booker discretion to impose a reasonable sentence outside the sentencing guidelines range. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 757, 160 L.Ed.2d 621 (2005). We have not previously determined whether the notice requirement of Rule 32(h) applies to a sentence set outside the advisory guidelines range based not on the guidelines’ departure provisions, but on a district court’s consideration of the section 3553(a) factors. We now join the Third, Seventh, and Eighth Circuits in concluding Rule 32(h) does not apply to such variances. See United States v. Vampire Nation, 451 F.3d 189, 196-97 (3d Cir.2006); United States v. Walker, 447 F.3d 999, 1007 (7th Cir.2006); United States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir.2005). After Booker, parties are inherently on notice that the sentencing guidelines range is advisory and that the district"
},
{
"docid": "22372963",
"title": "",
"text": "2003 for passing bad checks. Counsel indicated during the sentencing hearing that they had been unaware of these offenses when the plea agreement was signed, and concurred that Schweitzer should be assigned to criminal history category V. . The District Court agreed with defense counsel that the United States Sentencing Guidelines allow for a downward departure when the category over-represents the defendant’s criminal history, see U.S. Sentencing Guidelines Manual § 4A1.3(b), but, notably, it pointed out that the Guidelines also allow for an upward departure when the category under-represents criminal history, see id. § 4A1.3(a). . See also United States v. Vonn, 535 U.S. 55, 62-74, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (holding that courts may consider evidence outside of the plea colloquy in determining whether plea was knowing and voluntary). . We also note that Schweitzer neither moved to withdraw his plea nor objected to the adequacy of the colloquy before the District Court. This not only calls his current challenge into doubt but would normally result in plain-error review. See Vonn, 535 U.S. at 62-74, 122 S.Ct. 1043. However, even assuming that his objection had been properly preserved, we find no grounds to conclude that the plea was anything less than knowing and voluntary. . But cf. Fed. R.Crim. R. 11(c)(1)(C) (providing for plea agreements that bind district court). . Schweitzer does not argue that he was not given adequate notice of the possibility of an upward departure, see United States v. Himler, 355 F.3d 735, 743-44 (3d Cir.2004) (stating that notice of an upward departure is required under Federal Rule of Criminal Procedure 32(h)); cf. United States v. Vampire Nation, 451 F.3d 189, 195-98 (3d Cir.2006) (differentiating between traditional departures under the Guidelines and variances from the Guidelines based on Booker and holding that notice of a variance is not required under Rule 32(h)), and we accordingly do not address the issue. See also supra note 2 (noting that District Court raised possibility of an upward departure)."
},
{
"docid": "21237608",
"title": "",
"text": "must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (internal quotation marks, citations, and alterations omitted). This process serves to clarify the basis for the sentence imposed. See United States v. Jackson, 467 F.3d 834, 838-39 (3d Cir.2006). The calculations of the first two steps provide “a natural starting point” from which a court exercises its discretion at step three. Cooper, 437 F.3d at 331. Under the advisory Guidelines regime, we have distinguished between two types of sentence that diverge from the original Guidelines range. See United States v. Vampire Nation, 451 F.3d 189, 195 & n. 2 (3d Cir.2006) (adopting distinction between departures and variances). A traditional sentencing “departure” diverges at step 2 from the originally calculated range “for reasons contemplated by the Guidelines themselves.” Jackson, 467 F.3d at 837 n. 2. In contrast, a “variance” diverges at step 3 from the Guidelines, including any departures, based on an exercise of the court’s discretion under § 3553(a). Gunter, 462 F.3d at 247 n. 10. Although a departure or a variance could, in the end, lead to the same outcome — i.e., a reduction (or increase) in sentence as compared to the originally calculated range — it is important for sentencing courts to distinguish between the two, as departures are subject to different requirements than variances. B. The District Court sentenced Floyd without the benefit of our recent decisions distinguishing between variances and departures, and clarifying the preferred three-step sentencing process. The parties nevertheless agree that the disputed action of the District Court"
},
{
"docid": "15031126",
"title": "",
"text": "that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are to exercise their discretion by considering the relevant § 3553(a) factors ... in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. United States v. Lofink, 564 F.3d 232, 237-38 (3d Cir.2009) (citing United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006)) (internal quotation marks and citations omitted). III. We expressly distinguish between departures from the guidelines and variances from the guidelines. See United States v. Vampire Nation, 451 F.3d 189, 195 n. 2 (3d Cir.2006). Departures are enhancements of, or subtractions from, a guidelines calculation “based on a specific Guidelines departure provision.” Id. These require a motion by the requesting party and an express ruling by the court. Id. at 197-98. Variances, in contrast, are discretionary changes to a guidelines sentencing range based on a judge’s review of all the § 3553(a) factors and do not require advance notice. Id. at 195-98. “[District courts should be careful to articulate whether a sentence is a departure or a variance from an advisory Guidelines range.” Id. at 198. Whether a district court has imposed a departure or, instead, a variance has real consequences for an appellate court’s review. See, e.g., Irizarry v. United States, - U.S. -, 128 S.Ct. 2198, 2202, 171 L.Ed.2d 28 (2008) (holding that the notice requirement of Fed.R.Crim.P. 32(h) applies to departures but not to variances). An appellate court reviewing a variance for reasonableness does so by evaluating the district court’s analysis of the § 3553(a) factors, whereas an appellate court reviewing a departure must consult the relevant guidelines provision in order to determine whether the departure was appropriate. Accordingly, when a sentencing court engages in either a departure or a variance from the guidelines, it is imperative that the judge make clear which of these is being applied. In the instant matter, we are unable to determine whether the District Court intended to grant an upward departure or intended to grant a variance."
},
{
"docid": "15031125",
"title": "",
"text": "United States, 552 U.S. 38, -, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). In reviewing a criminal sentence, an appellate court should: first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range. Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. Id. at 597. In this Circuit, district courts should engage in the following three-step process when determining an appropriate sentence: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker, (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are to exercise their discretion by considering the relevant § 3553(a) factors ... in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. United States v. Lofink, 564 F.3d 232, 237-38 (3d Cir.2009) (citing United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006)) (internal quotation marks and citations omitted). III. We expressly distinguish between departures from the guidelines and variances from the guidelines. See United States v. Vampire Nation, 451 F.3d 189, 195 n. 2 (3d Cir.2006). Departures are enhancements of, or subtractions from, a guidelines calculation “based on a specific Guidelines departure provision.” Id. These require a motion by the requesting party and an express ruling by the court. Id. at 197-98. Variances, in contrast, are discretionary changes to a guidelines sentencing range based on a judge’s review of all the § 3553(a) factors and do not require advance notice. Id. at"
},
{
"docid": "21237616",
"title": "",
"text": "below it). Without speculating about the Court’s preferred course of action, we cannot determine which option it intended. III. Conclusion For the reasons stated, we vacate the sentence and remand for resentencing. . We previously recited a more detailed procedural history of this case in United States v. Floyd, 428 F.3d 513 (3d Cir.2005) (“Floyd I”). . Guidelines Section § 5K1.1 provides that the government may move for a downward departure when a defendant has provided \"substantial assistance in the investigation or prosecution of another person who has committed an offense.” U.S. Sentencing Guidelines Manual § 5K1.1 (2003). The day before entering her plea, Floyd met with a co-defendant to persuade him to plead guilty. That co-defendant, as well as two others, decided to plead guilty shortly thereafter. . Had Floyd been convicted of all charges set forth in the indictment, she would have faced a potential Guidelines range of 292 to 365 months, as compared to the 60-month statutory maximum she faced on the drug trafficking charge. . The District Court also stated that \"I departed downward approximately 12.5 percent from the original sentence, and that also reflects a departure in the offense level. A departure of 10 percent results in a guideline range of 36.9 to 45.9 months. 12 percent would be slightly more than that.” (Id. at 56.) . For example, in United States v. Colon, 474 F.3d 95 (3d Cir.2007), we held that a district court did not err in failing to engage in a \"ratcheting” procedure applicable to upward departures because it imposed an above-Guidelines sentence as a variance, not a departure. Id. at 99 & n. 8. Moreover, in Vampire Nation, we held that the notice requirement for upward departures would not apply to variances. 451 F.3d at 197; see also Fed. R.Crim. Pro. 32(h). Importantly, we observed in Vampire Nation that sentencing courts should \"be careful to articulate whether a sentence is a departure or a variance from an advisory Guidelines range,\" 451 F.3d at 198, and we have noted that this terminology \"aid[s] our review of criminal sentences.” Jackson, 467 F.3d at"
},
{
"docid": "21237609",
"title": "",
"text": "that diverge from the original Guidelines range. See United States v. Vampire Nation, 451 F.3d 189, 195 & n. 2 (3d Cir.2006) (adopting distinction between departures and variances). A traditional sentencing “departure” diverges at step 2 from the originally calculated range “for reasons contemplated by the Guidelines themselves.” Jackson, 467 F.3d at 837 n. 2. In contrast, a “variance” diverges at step 3 from the Guidelines, including any departures, based on an exercise of the court’s discretion under § 3553(a). Gunter, 462 F.3d at 247 n. 10. Although a departure or a variance could, in the end, lead to the same outcome — i.e., a reduction (or increase) in sentence as compared to the originally calculated range — it is important for sentencing courts to distinguish between the two, as departures are subject to different requirements than variances. B. The District Court sentenced Floyd without the benefit of our recent decisions distinguishing between variances and departures, and clarifying the preferred three-step sentencing process. The parties nevertheless agree that the disputed action of the District Court involved a departure, rather than a variance, and it is clear from the record that the Court granted a departure motion under § 5K1.1, rather than varying Floyd’s sentence based on the factors listed at § 3553(a). The parties dispute only whether the Court properly effected the departure it granted. Floyd argues that a downward departure under the Guidelines must result in a sentence below the otherwise applicable range and that the District Court “misunderstood the definition of a downward departure.” Floyd’s Br. at 9. In our view, her challenge relates to whether the Court properly determined, at step 2 of the Gunter process, how its departure “affect[ed] the [original] Guidelines calculation.” Gunter, 462 F.3d at 247. For the reasons that follow, we conclude that the manner by which the District Court reduced Floyd’s sentence — that is, from a prior sentence of 48 months to a new sentence of 42 months — was inconsistent with proper sentencing procedure. c. The parties agree that the Guidelines define the phrase “downward departure” but dispute whether the"
},
{
"docid": "22044963",
"title": "",
"text": "inconsistency in our circuit’s post-Booker sentencing nomenclature. In United States v. Calzada-Maravillas, 443 F.3d 1301 (10th Cir.2006), for example, we referred to a sentence increase based on § 3553(a) factors as a \"non-guideline departure” and an increase based on application of U.S.S.G. Chapter Four as a “guideline departure.” Id. at 1304. In United States v. Dozier, 444 F.3d 1215 (10th Cir.2006), we termed a sentencing increase an \"upward departure” where the district court based the enhancement on victim impact statements — an arguably permissible ground under § 3553(a) but not in Chapters Four or Five of the Sentencing Guidelines. Id. at 1217. We now clarify that when a court reaches a sentence above or below the recommended Guidelines range through application of Chapters Four or Five of the Sentencing Guidelines, the resulting increase or decrease is referred to as a \"departure.” When a court enhances or detracts from the recommended range through application of § 3553(a) factors, however, the increase or decrease is called a \"variance.” Our most recent discussion of post-Booker sentencing terminology adopts these definitions. See United States v. Cage, 451 F.3d 585, 591 n. 2 (10th Cir.2006). . During one portion of the sentencing hearing, the judge mistakenly believed that the maximum sentence for the offense of conviction was 20 years’ imprisonment. The court announced its intention \"to impose a sentence of half [of the maximum], or 10 years, which, frankly, may be on the low side, to provide just punishment for what he did in this case.” Later in the proceedings, the prosecutor pointed out that the maximum sentence was actually ten years’ imprisonment. Id. at 16. The court then announced: I will change the sentence from the proposed 120 months to a term of 84 months which I think, again, is a very light sentence given the defendant’s criminal history of continuous abuse, violent abuse of women, and the exceptionally violent circumstances of the offense to which he pled guilty for which I’m imposing sentence today. . Fed.R.Crim.P. 32(h) states: Before the court may depart from the applicable sentencing range on a ground not identified"
},
{
"docid": "22272322",
"title": "",
"text": "an upward departure will be at issue and of the facts that allegedly support such a departure. Here we deal with the extraordinary case in which the district court, on its own initiative and contrary to the expectations of both the defendant and the Government, decides that the factual and legal predicates for a departure are satisfied. Burns, 501 U.S. at 135, 111 S.Ct. 2182 (footnote omitted). Under such circumstances, the Court chose to construe the relevant Rule 32 language then in effect to ensure “both notice and a meaningful opportunity to be heard.” Id. at 137-38, 111 S.Ct. 2182 (emphases in original). In 2002, at a time when the sentencing guidelines were still mandatory, Rule 32 was amended to reflect the teaching of Bums. See Vampire Nation, 451 F.3d at 195-96. Pursuant to that amendment, Rule 32(h) now requires that a sentencing court give \"reasonable notice” to the parties \"[b]efore ... de-partfing] from the applicable sentencing range on a ground not identified ... in the presentence report or in a party’s prehearing submission.” Fed.R.Crim.P. 32(h). . The Court said: [W]ere we to read Rule 32 to dispense with notice, we would then have to confront the serious question whether notice in this setting is mandated by the Due Process Clause. Because Rule 32 does not clearly state that a district court sua sponte may depart upward from an applicable Guidelines sentencing range without providing notice to the defendant we decline to impute such an intention to Congress. Burns, 501 U.S. at 138, 111 S.Ct. 2182. But cf. id. at 146, 155, 111 S.Ct. 2182 (Souter, J., dissenting) (arguing that “what the Court d[id] to Rule 32 conies closer to reconstruction than construction”). . An upward variance is a (post-Booker) decision to sentence above the advisory guidelines range based on the § 3553(a) factors. See Jackson, 467 F.3d at 837 n. 2. An upward variance is distinguished from an upward departure, which is a decision to increase the guidelines range \"for reasons contemplated by the Guidelines themselves (under U.S.S.G. § 4A1.3 and Ch. 5, Pt. K).” Id.; see also, e.g.,"
},
{
"docid": "16548831",
"title": "",
"text": "WL 2732476, No. 04-2650, slip op. at 6-8 (8th Cir. May 10, 2005) (citing United States v. Mathijssen, 406 F.3d 496 (8th Cir.2005)). We review for abuse of discretion the decision to depart upward from the guidelines, and we review the extent of the departure for reasonableness. Id. at - n. 5 (citing United States v. Iron Cloud, 312 F.3d 379, 382 (8th Cir.2002)); United States v. Sample, 213 F.3d 1029, 1032, 1034 (8th Cir.2000). The District Court made the departure pursuant to § 4A1.3 after determining that Fogg’s prior criminal activity was not adequately reflected by her criminal history score. See U.S. Sentencing Guidelines Manual § 4A1.3(a)(l) (2003). The District Court also determined that Fogg’s numerous convictions — for petty theft, insufficient-funds checks, driving under the influence, and driving without a license — indicated a high likelihood that Fogg would commit other crimes. See id. We note that these bases for departure run parallel to two of the sentencing factors set forth in 18 U.S.C. § 3553(a). See United States v. Yahnke, 395 F.3d 823, 825 (8th Cir.2005) (finding that the bases for a departure under § 4A1.3(a) correspond with the sentencing factors listed in 18 U.S.C. §§ 3553(a)(1) and (a)(2)(C)). We therefore conclude these were permissible bases on which to make the upward departure. After deciding a departure was warranted, the District Court exercised its discretion by departing upward to a criminal history category of VI and to an offense level of 8. This increased the applicable sentencing range of 9-15 months to a range of 18-24 months. The District Court then sentenced Fogg to the statutory maximum of twenty-four months for the two misdemeanor larceny convictions. Fogg could not have been surprised by this sentence, because the District Court had informed her before she pleaded guilty that she might receive a two-year sentence. Plea Hr’g Tr. at 12. Given Fogg’s extensive history of criminal activity, the District Court did not abuse its discretion by departing upward under § 4A1.3, and the extent of the departure was reasonable. Based on the foregoing discussion, we conclude that, insofar as"
},
{
"docid": "22272298",
"title": "",
"text": "victim and her family.' And, after Booker, the factors which a district court will take into account at sentence are clear: “Booker contemplates that the district court will impose a discretionary sentence after consideration of the advisory Guidelines, the grounds raised by counsel, the defendant’s allocution, victim statements, other evidence, and the factors set forth in § 3553(a).” Vampire Nation, 451 F.3d at 197 (emphasis and footnote omitted). It is true that in Burns v. United States, 501 U.S. 129, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), decided under the sentencing guidelines when still deemed mandatory, the Supreme Court “held that an earlier version of Rule 32 required district courts to give defendants advance notice before engaging in sua sponte upward departures from Guidelines sentences.” Vampire Nation, 451 F.3d at 195-96 (citing Burns, 501 U.S. at 136, 111 S.Ct. 2182). And it is also true that — although Bums was, as a formal matter, a case of rule interpretation — the Court was at pains to make clear its awareness that the Due Process Clause was close at hand. Ausburn would extend the Bums rationale to require not only advance notice of a traditional “departure” under the sentencing guidelines, but advance notice of any sentence outside the guidelines range, including one based on the sentencing court’s consideration of the factors enumerated in 18 U.S.C. § 3553(a) (i.e., a sentencing “variance” ). In Vampire Nation, we declined to give such a construction to Rule 32(h), concluding that (1) the rationale of Bums lacked force after Booker; and (2) application of the principles stated in Bums to sentencing variances under § 3553(a) would actually contravene the superseding principles stated in Booker. See Vampire Nation, 451 F.3d at 196. We explained that: [N]ow that Booker has rendered the Guidelines advisory, the concerns that animated the Court’s decision in Bums no longer apply.... Furthermore, the requirement of Rule 32(h) that the court specify “any ground” of contemplated departure from the Guidelines range was designed for pre-Booker departures, which were constrained by the provisions of the Guidelines pertaining to departures. The Guidelines have now become"
},
{
"docid": "22272299",
"title": "",
"text": "was close at hand. Ausburn would extend the Bums rationale to require not only advance notice of a traditional “departure” under the sentencing guidelines, but advance notice of any sentence outside the guidelines range, including one based on the sentencing court’s consideration of the factors enumerated in 18 U.S.C. § 3553(a) (i.e., a sentencing “variance” ). In Vampire Nation, we declined to give such a construction to Rule 32(h), concluding that (1) the rationale of Bums lacked force after Booker; and (2) application of the principles stated in Bums to sentencing variances under § 3553(a) would actually contravene the superseding principles stated in Booker. See Vampire Nation, 451 F.3d at 196. We explained that: [N]ow that Booker has rendered the Guidelines advisory, the concerns that animated the Court’s decision in Bums no longer apply.... Furthermore, the requirement of Rule 32(h) that the court specify “any ground” of contemplated departure from the Guidelines range was designed for pre-Booker departures, which were constrained by the provisions of the Guidelines pertaining to departures. The Guidelines have now become advisory and they no longer limit the grounds a court can consider at sentencing. Thus, the Guidelines are now only one factor among many which can influence a discretionary sentence. Application of the advance notice requirement of Rule 32(h) to discretionary sentencing] would elevate the advisory sentencing range to a position of importance that it no longer can enjoy. Id. (internal quotation marks and citation omitted). We further observed that the proposed requirement of advance notice for sentencing variances was unnecessary after Booker: “Because defendants are aware [prior to sentencing] that district courts will consider the factors set forth in § 3553(a), we believe the element of ‘unfair surprise’ that Bums sought to eliminate is not present.” Id. (citing United States v. Walker, 447 F.3d 999, 1007 (7th Cir.2006), cert. denied, - U.S. -, 127 S.Ct. 314, 166 L.Ed.2d 236 (2006)). Although Vampire Nation, like Bums, was technically a rule-interpretation case, we see no reason to vary either the analysis or the result of Vampire Nation in light of Ausburn’s analogous claim, brought directly under"
},
{
"docid": "20955646",
"title": "",
"text": "considerations will result in a ‘guidelines sentence.’ Once the guidelines sentence is determined, the court shall then consider all other factors set forth in § 3553(a) to determine whether to impose the sentence under the guidelines or a non-guidelines sentence.”). Kendall’s argument is without merit. Kendall cites no authority for the proposition a sentencing court is not entitled to vary upwards under § 3553(a) despite failing to depart upwards under § 4A1.3. Cf. United States v. Shannon, 414 F.3d 921, 923 (8th Cir.2005) (“Since Booker, we have explained that in imposing sentence under the new regime, a district court should determine the advisory guideline sentencing range, ... [including] any appropriate departures from the guidelines.... [and] also may vary from the advisory guideline range based on the factors set forth in § 3553(a), so long as such a variance is reasonable.” (citations omitted)). B Kendall next argues his sentence was unreasonable under § 3553(a). He notes the advisory range was twenty-seven to thirty-three months given his total offense level of twelve with, assuming he is not a career offender, his eleven criminal history points and thus criminal history category V. Nonetheless, he was sentenced to eighty-four months, an increase of 155%, or more than eight offense levels, from the maximum guidelines range. This increase is “extraordinary.” See United States v. Enriquez, 205 F.3d 345, 348 (8th Cir.2000) (observing a fifty percent downward departure was an “extraordinary” sentence reduction) (cited in, e.g., United States v. Saenz, 428 F.3d 1159, 1162 (8th Cir.2005)). An extraordinary departure “must be supported by extraordinary circumstances.” United States v. Dalton, 404 F.3d 1029, 1033 (8th Cir.2005). The district court focused on the seriousness of methamphetamine manufacture and Kendall’s criminal record in varying upwards. To the extent the district court discussed the seriousness of methamphetamine manufacture, there is nothing which sets Kendall’s case apart from any other methamphetamine case. Moreover, as the district court noted, he was “low on the chain” and not actually involved in methamphetamine manufacture. Regarding Kendall’s criminal record: at 17, he was convicted of second degree burglary and stealing; at 22, he was convicted"
},
{
"docid": "14320879",
"title": "",
"text": "to plead guilty to ... traveling interstate or causing others to travel interstate to facilitate drag trafficking in violation of Title 18, United States Code, Section 1952(a)(3). The maximum penalty for that offense is imprisonment for a period of five years.” App. at 69. The plea agreement also stated that the Government “may request” a downward departure for Floyd’s cooperation if Floyd “renders substantial assistance.” App. at 73. Pursuant to the terms of the plea agreement, Floyd pled guilty on April 20, 2004 to traveling or causing others to travel interstate to facilitate drug trafficking. The day before trial was scheduled to begin for Floyd’s co-defendants, Floyd traveled from South Carolina to Pennsylvania to speak with co-defendant Steven Smith. The Government acknowledged that Floyd’s conversations with Smith. “probably did at least have some influence on his decision to plead guilty.” Supp.App. at 25. On February 26, 2005, a probation officer filed a presentence report (“PSR”) which stated that the charges against Floyd resulted in a base offense level of thirty-eight. Because Floyd accepted responsibility for her actions, three levels were deducted and Floyd’s offense level was determined to be thirty-five. Floyd’s criminal history placed her in Category VI. The PSR noted that “[h]ad the defendant been convicted as charged in the Indictment, she would have been facing a ... guideline range of 292 — 365 months.” PSR para. 56. In contrast, the statutory maximum sentence for the crime to which Floyd pled guilty, i.e., traveling or causing others to travel interstate to facilitate drug trafficking, is sixty months, as stated in the plea agreement. At the sentencing hearing, the Government chose not to recommend a downward departure from the sentencing guidelines. According to the Government, “Ms. Floyd’s sentencing guidelines range would have been 292 to 365 months but for the fact that she had a charge bargain.... [T]he charge bargain was obviously a very significant charge bargain here and [the Government] declined to authorize the motion for downward departure.” SuppApp. at 25. The District Court nonetheless did not accept the recommendation of the PSR that Floyd’s offense level was thirty-five."
}
] |
825798 | expenses incurred by creditors who make substantial contributions in Chapter 11 cases. Lebron v. Mechem Financial, Inc., 27 F.3d 937, 945 (3rd Cir.1994); Haskins v. United States (In re Lister), 846 F.2d 55, 57 (10th Cir.1988); In re Essential Therapeutics, Inc., 308 B.R. 170, 175 (Bankr.D.Del.2004); In re Alert Holdings, Inc., 157 B.R. 753, 758 (Bankr.S.D.N.Y.1993); Scott v. Mechem Financial, Inc. (In re Mechem Financial, Inc.), 152 B.R. 57, 60 (Bankr.W.D.Pa.1993), subsequently aff'd and remanded sub nom., Lebron v. Mechem Financial, Inc., 27 F.3d 937, 945 (3rd Cir.1994); In re Financial News Network Inc., 134 B.R. 732, 736 (Bankr.S.D.N.Y.1991); In re Texaco, Inc., 90 B.R. 622, 630-631 (Bankr.S.D.N.Y.1988); In re Russell Transfer, Inc., 59 B.R. 871, 872-873 (Bankr.W.D.Va.1986); REDACTED In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 572 (Bankr.D.Utah 1985); In re Med General, Inc., 17 B.R. 13, 14 (Bankr.D.Minn.1981). But, none of those cases, including Trans World and Martin Exploration, are on point. All involve Chapter 11 cases, which this one is not. In addition, all were decided under section 503(b)(3)(D), which, aside from not being applicable to Chapter 7 cases, is not the statute upon which AmSouth’s has based its administrative expense request. Moreover, any persuasive support that section 503(b)(3)(D) cases might lend is eroded because the prepetition fees and expenses that were allowed as administrative expenses, in addition to Trans World, were allowed in only four of the above. Those are Lebrón and Mechem Financial, (which | [
{
"docid": "2107536",
"title": "",
"text": "with the prosecution of a criminal offense relating to the case or to the business or property of the debtor; (D) a creditor, an indenture trustee, an equity security holder, or a committee representing creditors or equity security holders other than a committee appointed under section 1102 of this title, in making a substantial contribution in a case under chapter 9 or 11 of this title; or (E) a custodian superseded under section 543 of this title, and compensation for the services of such custodian; (4) reasonable compensation for professional services rendered by an attorney or an accountant of an entity whose expense is allowable under paragraph (3) of this subsection, based on the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title, and reimbursement for actual, necessary expenses incurred by such attorney or accountant; This language permits the court to allow as administrative expenses certain qualifying pre-petition expenses. The principal test is whether the services were a benefit to the debtor’s estate. As the court in In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 569 (Bkrtcy.1985) stated: The appropriate test under Section 503(b) is whether the services substantially contributed to a successful result, that is, an actual and demonstrable benefit to the debtor’s estate, the creditors, and, to the extent relevant, the stockholders, (citations omitted). 11 U.S.C. Section 503(b)3(E) was intended to codify the “Equitable Benefit” Doctrine of Randolph v. Scruggs, 190 U.S. 533, 23 S.Ct. 710, 47 L.Ed. 1165 (1903). In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 570-571 (Bkrtcy.1985), the court stated: The equitable benefit doctrine of Randolph v. Scruggs permitted assignees and others, usually receivers, to receive such prepetition expenses as were reasonably incurred in the care and preservation of assets, which inured to the benefit of the bankruptcy estate, (citations omitted). The following prepetition expenses were accorded an administrative priority as tending to preserve and benefit the bankruptcy estate: (1) appraiser’s fees; (2) fire insurance premium; (3) repairs, insurance, and taxes paid by the assign-ee; (4) reimbursement of bills"
}
] | [
{
"docid": "18739644",
"title": "",
"text": "cases. We begin with Cohn’s request. A substantial amount of the services for which he seeks compensation occurred pre-petition. Those included his referring Ash-er Rabinowitz to Milberg Weiss as well as his aiding in the formation of an ad hoc committee of limited partners. I am not prepared to hold, as the debtors seem to suggest is appropriate in their opposition papers, that as a bright line rule, services performed during prepetition negotiations and attempted workouts are not compensa-ble under section 503(b) of the Bankruptcy Code. Jensen-Farley, 47 B.R. at 589. Indeed, ample case law suggests otherwise. Several courts have opined that expenses incurred prior to the filing of the bankruptcy petition are compensable under Code section 503(b)(3)(D) and (4) if they were intended to result, and ultimately do result in a substantial and demonstrable benefit to the estate. See Lister, 846 F.2d at 57; accord In re Martin Exploration, 1989 WL 152565, *3 (E.D.La.1989) (Even though the law sometimes allows prepetition attorneys’ fees to be classified as administrative expenses, there has to be some determination by the court that those fees were of benefit to the debtor's estate); In re 9085 E. Mineral Office Bldg., Ltd., 119 B.R. 246, 251 (Bankr.D.Colo.1990) (Applicant who seeks section 503(b) expenses for pre-petition services must show an intent to benefit the debtor’s estate, not simply that his activities resulted in some accidental, inadvertent or unintentional benefit); In re Texaco, Inc., 90 B.R. 622, 630 (Bankr.S.D.N.Y.1988) (Expenses incurred prepetition are compensable under section 503(b) if they resulted in a substantial, demonstrable benefit to the estate), citing Lister, supra; In re Valley Isle Broadcasting, Ltd., 56 B.R. 505, 506 (Bankr.D.Haw.1985) (The language of section 503(b) allows the court to permit as administrative expenses certain qualifying prepetition expenses which conferred upon the estate a substantial benefit). Here, Cohn’s prepetition activities in no way fostered the reorganization. It is of particular note that Cohn did not help to resolve the multidistrict litigation but actually opposed its resolution. Moreover, he was urging that the debtors’ plan of reorganization not encompass the multidistrict litigation settlement but, instead, that the"
},
{
"docid": "14614405",
"title": "",
"text": "Debtor argues that the Trustee has no remaining section 503(b)(3) claim and thus, is not entitled to recovery under section 503(b)(4). This issue appears to be one of first impression in this circuit. The Court has reviewed some seventy cases involving section 503(b)(4). A number of courts have permitted the recovery of attorney fees and expenses in cases where there is no mention of claims for recovery of expenses other than attorney fees. See, e.g., Lebron v. Mechem Fin., Inc., 27 F.3d 937 (3d Cir.1994); In re Flight Transp. Corp. Sec. Litig., 874 F.2d 576 (8th Cir.1989); In re Hooker Inv., Inc., 188 B.R. 117 (S.D.N.Y.1995); In re Decarbo, 152 B.R. 44 (W.D.Pa.1993); In re Warner, 141 B.R. 762 (M.D.Fla.1992); In re Encapsulation Int'l Inc., No. 96-31762, 1998 WL 801898, at *1 (Bankr.W.D.Tenn. Nov. 9, 1998). The language of sections 503(b)(3) and 503(b)(4) lends support to the Debtor’s argument, however. Section 503(b)(3) specifically relates to “actual, necessary expenses other than compensation and reimbursement specified in paragraph (4) of this subsection....” 11 U.S.C. § 503(b)(3) (emphasis supplied). Section 503(b)(4) permits “reasonable compensation for professional services rendered by an attorney ... of an entity whose expense is allowable under paragraph (3) of this subsection....” 11 U.S.C. § 503(b)(4). The Debtor’s position further appears to be supported by the Fifth Circuit in Matter of DP Partners Ltd. Partnership, 106 F.3d 667, 674 (5th Cir.), cert. denied, DP Partners Ltd. Partnership v. Hall Financial Group, Inc., — U.S. -, 118 S.Ct. 63, 139 L.Ed.2d 26 (1997). In that case, the court stated: A closely-related but separate provision is subsection (b)(4).... This provision is expressly dependent upon a claimant qualifying for an administrative expense award in subsections (3), which requires that expenses, other than professional fees, be reasonable and necessary. Id. at 674. Although the opinion strongly suggests that an independent creditor expense is a prerequisite to obtaining reimbursement of attorney fees under section 503(b)(4), there is in fact no mention of a claim other than for attorney fees and expenses. The Fifth Circuit nevertheless remanded the case for a determination of ■the amount of"
},
{
"docid": "8986075",
"title": "",
"text": "is of course, limited to Chapter 9 and Chapter 11 cases and does not apply here, as Am-South recognized in its Supplemental Brief of AmSouth Bank in Support of Motion for Administrative Priority. In that brief AmSouth conceded that section 503(b)(3)(D) is inapplicable to, and supplies no statutory basis for granting, its request. It wrote, “By its express terms § 503(b)(3)(D) is limited to only cases under Chapters 9 and 11 of the Bankruptcy Code. Consequently, AmSouth cannot represent to the Court that § 503(b)(3)(D) would apply to the Motion now at bar.” Id. at 2. It is unclear then why AmSouth relied on Trans World and Martin Exploration unless it was to support a general proposition that a creditor’s prepetition professional fees and costs may be accorded administrative expense priority. If that is the reason, the Court must reject it. As the discussion below demonstrates, cases that rely on section 503(b)(3)(D) are not applicable to the situation before this Court. In addition to Trans World and Martin Exploration, other courts have indicated a willingness to grant administrative expense priority pursuant to section 503(b)(3)(D) to prepetition fees and expenses incurred by creditors who make substantial contributions in Chapter 11 cases. Lebron v. Mechem Financial, Inc., 27 F.3d 937, 945 (3rd Cir.1994); Haskins v. United States (In re Lister), 846 F.2d 55, 57 (10th Cir.1988); In re Essential Therapeutics, Inc., 308 B.R. 170, 175 (Bankr.D.Del.2004); In re Alert Holdings, Inc., 157 B.R. 753, 758 (Bankr.S.D.N.Y.1993); Scott v. Mechem Financial, Inc. (In re Mechem Financial, Inc.), 152 B.R. 57, 60 (Bankr.W.D.Pa.1993), subsequently aff'd and remanded sub nom., Lebron v. Mechem Financial, Inc., 27 F.3d 937, 945 (3rd Cir.1994); In re Financial News Network Inc., 134 B.R. 732, 736 (Bankr.S.D.N.Y.1991); In re Texaco, Inc., 90 B.R. 622, 630-631 (Bankr.S.D.N.Y.1988); In re Russell Transfer, Inc., 59 B.R. 871, 872-873 (Bankr.W.D.Va.1986); In re Valley Isle Broadcasting, Ltd., 56 B.R. 505, 506 (Bankr.D.Hawai’i 1985); In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 572 (Bankr.D.Utah 1985); In re Med General, Inc., 17 B.R. 13, 14 (Bankr.D.Minn.1981). But, none of those cases, including Trans World and Martin Exploration,"
},
{
"docid": "10423105",
"title": "",
"text": "Energy Corp., 940 F.2d 957 (5th Cir.1991) (holding that an administrative expense claimant need not file a proof of claim under section 501 to be entitled to reimbursement of expenses incurred to benefit the debtor’s estate), cert. denied, 502 U.S. 1032, 112 S.Ct. 873, 116 L.Ed.2d 778 (1992). . In re Consolidated Bancshares, Inc., 785 F.2d 1249, 1253 (5th Cir.1986) (internal quotation marks omitted) (citations omitted). . Id. (internal quotation marks omitted) (citations omitted). . See, e.g., Lebron v. Mechem Fin., Inc., 27 F.3d 937 (3d Cir.1994); In re Lister, 846 F.2d 55, 57 (10th Cir.1988) (holding that \"[ajdministrative expenses ... are compensable under 11 U.S.C. § 503(b)(3)(D), if those expenses are incurred in efforts which were intended to benefit, and which did directly benefit, the bankruptcy estate\"). . Crane v. Commissioner, 331 U.S. 1, 6, 67 S.Ct. 1047, 1050-51, 91 L.Ed. 1301 (1947). . Webster’s Third New International Dictionary 2280 (4th Ed.1976). Legislative history, albeit scant, also supports this construction: The phrase \"substantial contribution in the case” is derived from Bankruptcy Act §§ 242 and 243. It does not require a contribution that leads to confirmation of a plan, for in many cases, it will be a substantial contribution if the person involved uncovers facts that would lead to a denial of confirmation, such as fraud in connection with the case. H.R.Rep. No. 595, 95th Cong., 1st Sess. 355 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6311. In the present case, HFG uncovered a fraudulent transfer, and its other actions led directly to the confirmation of a plan. HFG admits that these actions were motivated by self interest. Certainly, if Congress intended to withhold reimbursement for administrative expenses under these circumstance's, at least some indication of that intent would appear in the statute or its legislative history. .11 U.S.C. § 503(b)(3)(D). . In re Lister; see also In re Consolidated Bancshares (holding that substantial contribution is a question of fact). . 11U.S.C. § 503(b)(4). . 48 8 F.2d 714 (5th Cir.1974). . In re Lawler, 807 F.2d 1207 (5th Cir.1987). . Id.; In re Lister."
},
{
"docid": "15924679",
"title": "",
"text": "are clearly erroneous. Id. See also In re Prince, 40 F.3d 356, 359 (11th Cir.1994) (holding that we review factual findings for clear error and legal conclusions de novo). IV. SUBSTANTIAL CONTRIBUTION A. The Standard Section 503 of Chapter 11 of the bankruptcy code provides that certain administrative expenses “shall be allowed” after notice and a hearing. 11 U.S.C. § 503(b) (emphasis added). Included in the list of administrative expenses awarded under § 503(b) are the expenses incurred by “a creditor, an indenture trustee, an equity security holder, or a committee representing creditors or equity security holders ... in making a substantial contribution in a case under Chapter 9 or 11 of this title....” Id. at § 503(b)(3)(D). Section 503(b)(4) provides for a related award of attorney fees. In creating these provisions, Congress did not specifically define the term “substantial contribution.” As such, a conflict has developed among the circuits regarding whether the motivation behind a creditor’s actions should disqualify him from receiving fees where a contribution has been made to the resolution of the bankruptcy proceeding. Compare In re DP Partners, Ltd., 106 F.3d 667, 673 (5th Cir.1997) (noting that the plain language of the statute does not require “a self-deprecating, altruistic intent as a prerequisite to recovery ....”) with Lebron v. Mechem Financial, Inc., 27 F.3d 937, 944 (3d Cir.1994) (finding that the benefit to the estate “must be more than an incidental one” arising out of the pursuit of self-interest) and In re Lister, 846 F.2d 55, 57 (10th Cir.1988) (“Efforts undertaken by a creditor solely to further his own self-interest ... will not be compensable, notwithstanding any incidental benefit accruing to the bankruptcy estate.”). We find the logic of the Fifth Circuit, as stated in DP Partners, compelling. In interpreting a statute, we begin by examining the text and assigning the “plain, ordinary, and most natural meaning” to terms not otherwise defined in the text itself. Boca Ciega Hotel, Inc. v. Bouchard Transp. Co., 51 F.3d 235, 237 (11th Cir.1995). In applying the plain meaning of the text, other circuits have held that a substantial contribution"
},
{
"docid": "16689140",
"title": "",
"text": "lower fee of N & A should remain the Bank’s sole responsibility in light of the Bank’s willingness to be responsible without charge to the estate for the comparable services of The Consulting Group at a higher fee. I agree. Therefore, even if the Bank’s prepetition or postpetition loan documents could be construed to include Debt- or responsibility for N & A’s services, the court would not order reimbursement. (2) Section 503(b) The Bank argues that it is entitled to reimbursement of the N & A expense under § 503(b) which authorizes as an administrative expense the payment of the “actual, necessary expenses ... incurred by ... (D) a creditor ... in making a substantial contribution” in a chapter 11 case. Because administrative expenses are given priority status by § 507(a)(1) and deplete the funds available to general unsecured creditors, administrative expenses must be given strict scrutiny by the court. In re Patch Graphics, 58 Bankr. 743, 745 (Bankr.W.D.Wis.1986). Creditors are presumed to act primarily in their own interests and not for the benefit of the estate as a whole, In re U.S. Lines, Inc., 103 B.R. 427, 430 (Bankr.S.D.N.Y.1989); In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 571 (Bankr.D.Utah 1985), and case law to date is clear that “[e]fforts undertaken by a creditor solely to further his own self-interest ... will not be compensable, notwithstanding any incidental benefit accruing to the bankruptcy estate.” In re Lister, 846 F.2d 55, 57 (10th Cir.1988); see In re D.W.G.K. Restaurants, Inc., 84 B.R. 684, 689 (Bankr.S.D.Cal.1988). As noted earlier in this ruling, N & A was hired for the sole purpose of protecting the interest of the Bank; N & A reported to the Bank on the trustee’s activities and advised the Bank concerning the trustee’s funding requests. The Bank expressly chose not to have the estate employ N & A as a professional person with undivided loyalty to the estate and provide payment for such services in the “carve out” provisions of the financing order. Furthermore, the trustee’s argument concerning the Bank’s being relieved from the payment to The Consulting Group"
},
{
"docid": "8986077",
"title": "",
"text": "are on point. All involve Chapter 11 cases, which this one is not. In addition, all were decided under section 503(b)(3)(D), which, aside from not being applicable to Chapter 7 cases, is not the statute upon which AmSouth’s has based its administrative expense request. Moreover, any persuasive support that section 503(b)(3)(D) cases might lend is eroded because the prepetition fees and expenses that were allowed as administrative expenses, in addition to Trans World, were allowed in only four of the above. Those are Lebrón and Mechem Financial, (which are the same case), and Russell Transfer, and Med General. Furthermore, quite a number of other courts have reached the opposite result in substantially similar circumstances, both under section 503(b)(3)(D) and section 503(b)(1)(A). Those courts held in circumstances where a creditor renders services, or incurs expenses, or provides goods to a Chapter 11 debtor-in-possession prepetition, that the creditor was not entitled to an administrative expense priority even if those services, expenses, or products resulted in a postpetition benefit to the debt- or-in-possession. Examples include: In re Jartran, Inc., 732 F.2d 584 (7th Cir.1984)(advertising agency which, pre-petition, placed debtor-in-possession’s orders for classified advertisements in Yellow Pages with an advertising company, and advertising company which in turn, arranged prepetition to have debt- or-in-possession’s ads to appear in Yellow Page directories nationwide, were not allowed administrative expense claims for the cost of the advertising even though the advertising was not published until after the debtor-in-possession filed its Chapter 11 petition and there was no question that the appearance of the ads in Yellow Page directories throughout the country was beneficial to the debtor-in-possession in the operation of its business); Vanco Trading, Inc. v. Monheit, No. 3:95CV02681 (EBB), 1999 WL 464531 (D.Conn. June 17, 1999)(supplier of chemical products was not entitled to administrative expense for products delivered to debtor-in-possession several hours before petition was filed even though debtor-in-possession received payment from its customer from the resale of the chemicals postpetition); In re Baths Intern., Inc., 31 B.R. 143 (S.D.N.Y.1983)(affirming denial by bankruptcy court of administrative expense priority in Chapter 11 case to fees claimed by advertising"
},
{
"docid": "4716470",
"title": "",
"text": "a substantial contribution to the debtors’ estate as a result of the Derivative Attorneys’ actions with regard to adequate disclosure and investigation into the origin of the releases and derivative suit discontinuances in the Joint Plan, the issue which must now be resolved is the applicable standard for determining the reasonable fees. (a) Pre-petition Fees Determination of compensible administrative expenses is within the discretion of the bankruptcy court. In re Verco Industries, 20 B.R. 664, 665 (BAP 9th Cir.1982). Bankruptcy Code § 503(b) consists of those expenses incurred during the pendency of the bankruptcy. In re Lister, 846 F.2d 55, 57 (10th Cir.1988). Expenses incurred prior to the filing of the petition in bankruptcy are also compensable pursuant to 11 U.S.C. § 503(b). In re Lister, 846 F.2d at 57; In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 566 (Bankr.D.Utah 1985). In every case where pre-petition expenses were allowed, a demonstrable benefit to the estate was shown. In re Jensen-Farley Pictures, Inc., 47 B.R. at 571. The benefit was required to be substantial and courts carefully scrutinize such requests. In re Jensen Farley Pictures, Inc., 47 B.R. at 571 citing Bass v. Quittner, Stutman & Treister, 381 F.2d 54, 59 (9th Cir.1967). The “direct benefit” test used by courts for fee applications under the Bankruptcy Act’s predecessor sections to 11 U.S.C. § 503(b), remains the touchstone in a “substantial contribution” analysis. The appropriate test under Section 503(b) is whether the services substantially contributed to a successful result, that is, an actual and demonstrable benefit to the debtor’s estate, the creditors and, to the extent relevant, the stockholder. In re Lister, 846 F.2d at 57; In re Jensen Farley Pictures, Inc, 47 B.R. at 569; See In re United Puerto Rican Food Corp., 41 B.R. 565, 574 (Bankr.E.D.N.Y.1984); In re Richton International Corp, 15 B.R. 854 (Bankr.S.D.N.Y.1981). However, compensation for fees incurred pre-petition must substantially contribute to the administration of the debtors’ estates post-petition. The fees incurred by the Derivative Attorneys pre-petition are not compensable pursuant to 11 U.S.C. § 503(b). Any pre-petition fees to be awarded must be awarded pursuant"
},
{
"docid": "12921033",
"title": "",
"text": "takes little imagination, howev er, to foresee the absurd results which could flow from such a strict interpretation. For example, one can imagine two creditors, A & B, each in possession of informa^ tion that a debtor had fraudulently squirreled away assets of the estate. Creditor A makes a free local call to his attorney, reveals the information and asks counsel to pursue the assets. Creditor B buys a stamp and sends his attorney a letter with the information and instructions to pursue the assets. Assuming that both creditors made a substantial contribution, only Creditor B, having fortuitously incurred the expense of a 32$ stamp, could recover his fees. Similarly, a literal reading would allow a creditor who paid the filing fee in an involuntary case to recover his attorney’s fees, while another creditor who allowed counsel to incur the filing expense would be stuck with the entire bill no matter how appropriate the involuntary petition. These are results with which we cannot easily abide. Appellee argues that this system, no matter how preposterous, is simply a method by which Congress intended to limit administrative expenses. Certainly, we recognize the Congressional goal of limiting administrative expense — sections 503(b)(3)(D) and (b)(4) have been described as “an accommodation between the twin objectives of encouraging ‘meaningful creditor participation in the reorganization process,’ and ‘keeping fees and administrative expenses at a minimum so as to preserve as much of the estate as possible for the creditors.’ ” Lebron v. Mechem Financial Inc., 27 F.3d 937, 944 (3d Cir.1994) (citations omitted). See also In re United States Lines, Inc., 103 B.R. at 429; In re Alumni Hotel Corp., 203 B.R. 624, 630 (Bankr.E.D.Mich.1996); In re Granite Partners, L.P., 213 B.R. at 440. Nevertheless, we do not agree that Congress intended to do so in such a capricious manner. Congress has, throughout the Code, demonstrated its manner of limiting administrative expenses. It does so by setting standards such as “reasonable,” “actual, necessary” and “substantial contribution,” or by setting out factors to be considered such as “based on the time, the nature, the extent, and the"
},
{
"docid": "8031482",
"title": "",
"text": "whether to allow administrative expenses and the appropriate amount of expense to award. In re Lister, 846 F.2d 55, 56 (10th Cir.1988); In re Consol. Bancshares, Inc., 785 F.2d at 1252. Whether the applicant has rendered a substantial contribution which entitles him to an allowance is a question of fact for the court to determine. Lebron, 2.1 F.3d at 946; In re Flight Transp. Corp. Sec. Litig., 874 F.2d at 582. The burden is on the applicant to prove by a preponderance of the evidence that he has made a substantial contribution. In re Lister, 846 F.2d at 57; In re Appliance Store, Inc., 181 B.R. at 242. The applicant bears this burden because as a creditor, he owes no fiduciary obligation to the bankruptcy estate and is presumed to act in his own best interest. In re Flight Transp. Corp. Sec. Litig., 874 F.2d at 581; In re United States Lines, Inc., 103 B.R. at 430; In re Appliance Store, Inc., 181 B.R. at 242; Lebron v. Mechem Fin. Inc., 27 F.3d at 943-44. As one court has articulately explained, Compensation cannot be freely given to all creditors who take an active role in bankruptcy proceedings. Compensation must be preserved for those rare occasions when the creditor’s involvement truly fosters and enhances the administration of the estate ... The integrity of Section 503(b) can only be maintained by strictly limiting compensation to extraordinary creditor actions which lead directly to tangible benefits to the creditors, debtor or the estate. In re D.W.G.K Restaurants, Inc., 84 B.R. 684, 690 (Bankr.S.D.Cal.1988). A.§ 503(b)(3)(D) does not allow fees for the Alumni Chapter 7 case. Fine’s motion for allowance of fees argues that the requirements of § 503(b)(3)(D) and (b)(4) are satisfied because the settlement orchestrated by Fine’s counsel benefits three estates: Alumni, a Chapter 7 case; Blue Realty, a Chapter 11 case, and Villa, also a Chapter 11 case. By its own terms, § 503(b)(3)(D) and (b)(4) apply only in Chapter 9 and Chapter 11 cases. See In re Beck-Rumbaugh Assoc., Inc., 68 B.R. 882 (Bankr.E.D.Pa.1987), aff'd, 84 B.R. 369 (E.D.Pa.1988) (no statutory"
},
{
"docid": "15924680",
"title": "",
"text": "bankruptcy proceeding. Compare In re DP Partners, Ltd., 106 F.3d 667, 673 (5th Cir.1997) (noting that the plain language of the statute does not require “a self-deprecating, altruistic intent as a prerequisite to recovery ....”) with Lebron v. Mechem Financial, Inc., 27 F.3d 937, 944 (3d Cir.1994) (finding that the benefit to the estate “must be more than an incidental one” arising out of the pursuit of self-interest) and In re Lister, 846 F.2d 55, 57 (10th Cir.1988) (“Efforts undertaken by a creditor solely to further his own self-interest ... will not be compensable, notwithstanding any incidental benefit accruing to the bankruptcy estate.”). We find the logic of the Fifth Circuit, as stated in DP Partners, compelling. In interpreting a statute, we begin by examining the text and assigning the “plain, ordinary, and most natural meaning” to terms not otherwise defined in the text itself. Boca Ciega Hotel, Inc. v. Bouchard Transp. Co., 51 F.3d 235, 237 (11th Cir.1995). In applying the plain meaning of the text, other circuits have held that a substantial contribution is one that “ ‘foster[s] and enhanee[s], rather than retard[s] or interrupts] the progress of reorganization.’ ” In re Consolidated Bancshares, Inc., 785 F.2d 1249, 1253 (5th Cir.1986) (quoting In re Richton Int’l Corp., 15 B.R. 854, 856 (Bankr.S.D.N.Y.1981)). See also Lebron, 27 F.3d at 944 (quoting Consolidated Bancshares). The United States Trustee and the Asbestos Settlement Trust look beyond the plain language of the statute and rely on Lister and Lebrón to support their argument that the bankruptcy judge was correct in considering S&R’s motivation to determine whether the firm’s actions “transcended self-protection.” Lebron, 27 F.3d at 944. See also Lister, 846 F.2d at 57. This requirement is not indicated by the language of the statute. Indeed, the Fifth Circuit rejected this argument, noting that “nothing in the Bankruptcy Code requires a self-deprecating, altruistic intent as a prerequisite to recovery of fees and expenses under section 503.” DP Partners, 106 F.3d at 673. Examining a creditor’s intent unnecessarily complicates the analysis of whether a contribution of considerable value or worth has been made. The"
},
{
"docid": "8031481",
"title": "",
"text": "accountant[.] Subsections 503(b)(3)(D) and 503(b)(4) have been described as “an accommodation between the twin objectives of encouraging ‘meaningful creditor participation in the reorganization process,’ and keeping fees and administrative expenses at a minimum so as to preserve as much of the estate as possible for the creditors.” Lebron v. Mechem Fin. Inc., 27 F.3d 937, 944 (3d Cir.1994) (internal citations omitted). See also Pierson & Gaylen v. Creel & Atwood (In re Consol. Bancshares, Inc.), 785 F.2d 1249, 1253 (5th Cir.1986); In re United States Lines, Inc., 103 B.R. 427, 429 (Bankr.S.D.N.Y.1989); General Elec. Capital Corp. v. Nigro (In re Appliance Store, Inc.), 181 B.R. 237, 242 (Bankr.W.D.Pa.1995). Administrative expenses under § 503(b) are priority claims paid directly from the bankruptcy estate and reduce the funds available for creditors and other claimants. Accordingly, § 503(b) is strictly construed. Mfrs. Hanover Trust Co. v. Bartsh (In re Flight Transp. Corp. Sec. Litig.), 874 F.2d 576, 581 (8th Cir.1989); In re United States Lines, Inc., 103 B.R. at 429. The bankruptcy court exercises its discretion to determine whether to allow administrative expenses and the appropriate amount of expense to award. In re Lister, 846 F.2d 55, 56 (10th Cir.1988); In re Consol. Bancshares, Inc., 785 F.2d at 1252. Whether the applicant has rendered a substantial contribution which entitles him to an allowance is a question of fact for the court to determine. Lebron, 2.1 F.3d at 946; In re Flight Transp. Corp. Sec. Litig., 874 F.2d at 582. The burden is on the applicant to prove by a preponderance of the evidence that he has made a substantial contribution. In re Lister, 846 F.2d at 57; In re Appliance Store, Inc., 181 B.R. at 242. The applicant bears this burden because as a creditor, he owes no fiduciary obligation to the bankruptcy estate and is presumed to act in his own best interest. In re Flight Transp. Corp. Sec. Litig., 874 F.2d at 581; In re United States Lines, Inc., 103 B.R. at 430; In re Appliance Store, Inc., 181 B.R. at 242; Lebron v. Mechem Fin. Inc., 27 F.3d at 943-44."
},
{
"docid": "10423104",
"title": "",
"text": "the disclosure statement. HFG, as- a plan proponent, complied with both of these statutes. . 160 B.R. 404 (Bankr.D.N.H.1993). . Id. at 455. . See S.Rep. No. 989, 95th Cong., 2d Sess. 66 (1978) (stating that \"the Rules of Bankruptcy Procedure will specify the time, the form, and the method of such a filing”), reprinted in 1978 U.S.C.C.A.N. 5787, 5852; H.R.Rep. No. 595, 95th Cong., 1st Sess. 355 (1977) (same), reprinted in 1978 U.S.C.C.A.N. 5963, 6311. . 3 Collier on Bankruptcy ¶ 503.1, at 503-4 n. 2c (Lawrence P. King ed., 15th ed. 1994) (noting that the Bankruptcy Reform Act of 1994 sets no time limit for filing administrative claims). . Id. (noting that because nothing in the Bankruptcy Rules or Code sets deadlines for filing administrative claims, bankruptcy judges \"may set such deadlines on a case by case basis”). Administrative expense claims are to be distinguished from other claims against the estate for which a creditor must timely file a proof of claim under 11 U.S.C. § 501. See NL Indus., Inc. v. GHR Energy Corp., 940 F.2d 957 (5th Cir.1991) (holding that an administrative expense claimant need not file a proof of claim under section 501 to be entitled to reimbursement of expenses incurred to benefit the debtor’s estate), cert. denied, 502 U.S. 1032, 112 S.Ct. 873, 116 L.Ed.2d 778 (1992). . In re Consolidated Bancshares, Inc., 785 F.2d 1249, 1253 (5th Cir.1986) (internal quotation marks omitted) (citations omitted). . Id. (internal quotation marks omitted) (citations omitted). . See, e.g., Lebron v. Mechem Fin., Inc., 27 F.3d 937 (3d Cir.1994); In re Lister, 846 F.2d 55, 57 (10th Cir.1988) (holding that \"[ajdministrative expenses ... are compensable under 11 U.S.C. § 503(b)(3)(D), if those expenses are incurred in efforts which were intended to benefit, and which did directly benefit, the bankruptcy estate\"). . Crane v. Commissioner, 331 U.S. 1, 6, 67 S.Ct. 1047, 1050-51, 91 L.Ed. 1301 (1947). . Webster’s Third New International Dictionary 2280 (4th Ed.1976). Legislative history, albeit scant, also supports this construction: The phrase \"substantial contribution in the case” is derived from Bankruptcy Act §§ 242"
},
{
"docid": "8986074",
"title": "",
"text": "1993 WL 559245 (D.Del. June 22, 1993); Monroe & Lemann v. Martin Exploration Co. (In re Martin Exploration), No. 89-0173, 1989 WL 152565 (E.D.La. Dec. 11, 1989); Younger v. United States (In re Younger), 165 B.R. 965 (S.D.Ga.1994), aff'd, 51 F.3d 1051 (11th Cir., Mar. 27, 1995)(“Table of Decisions Without Reported Opinions, No. 94-8573”), cert. denied, 516 U.S. 912, 116 S.Ct. 297, 133 L.Ed.2d 204 (1995); In re Zedda, 169 B.R. 605 (Bankr.E.D.La.1994); In re Antar, 122 B.R. 788 (Bankr.S.D.Fla. 1990); In re George, 23 B.R. 686 (Bankr.S.D.Fla.1982). Four of those cases, Younger, Zedda, Antar, and George, are distinguishable. In each of those cases the fees, costs, and expenses claimed, were like the present case, incurred postpetition in Chapter 7 cases. They do not stand for the proposition that prepetition expenses may qualify for administrative expense status. The two remaining cases AmSouth cites, Martin Exploration and Trans World, are also not supportive of its claim. The administrative expense status the courts in Martin Exploration and Trans World, recognized was based on section 503(b)(3)(D). That section is of course, limited to Chapter 9 and Chapter 11 cases and does not apply here, as Am-South recognized in its Supplemental Brief of AmSouth Bank in Support of Motion for Administrative Priority. In that brief AmSouth conceded that section 503(b)(3)(D) is inapplicable to, and supplies no statutory basis for granting, its request. It wrote, “By its express terms § 503(b)(3)(D) is limited to only cases under Chapters 9 and 11 of the Bankruptcy Code. Consequently, AmSouth cannot represent to the Court that § 503(b)(3)(D) would apply to the Motion now at bar.” Id. at 2. It is unclear then why AmSouth relied on Trans World and Martin Exploration unless it was to support a general proposition that a creditor’s prepetition professional fees and costs may be accorded administrative expense priority. If that is the reason, the Court must reject it. As the discussion below demonstrates, cases that rely on section 503(b)(3)(D) are not applicable to the situation before this Court. In addition to Trans World and Martin Exploration, other courts have indicated a willingness"
},
{
"docid": "8986073",
"title": "",
"text": "March 5, 1982, three days before the debtor filed its petition. For that reason, we hold that the petitioner has an unsecured pre-petition claim for $5,520.00 and not a post-petition claim for an administrative expense.”); In re Boogaart of Florida, Inc., 28 B.R. 157, 158 (Bankr.S.D.Fla.1982)(“It is clear that only those obligations of a debtor’s estate which arise post-petition and fall within the parameters of 11 U.S.C. § 503(b) are entitled to treatment as administrative expenses.”). Based on the above, the Court finds that the expenditures made by, and the obligations incurred by, AmSouth in connection with its prepetition prosecution of the causes of action ultimately settled by the trustee, may not be allowed or paid as administrative expenses in this ease. B. The cases AmSouth cites are distinguishable, are not persuasive, or are not on point, and the cases that rely on section 503(b)(3)(D) are not applicable. AmSouth cited six cases in support of its contentions. Those are: United States v. Air Line Pilots Assoc., Int’l (In re Trans World Airlines, Inc.), No. 92-115, 1993 WL 559245 (D.Del. June 22, 1993); Monroe & Lemann v. Martin Exploration Co. (In re Martin Exploration), No. 89-0173, 1989 WL 152565 (E.D.La. Dec. 11, 1989); Younger v. United States (In re Younger), 165 B.R. 965 (S.D.Ga.1994), aff'd, 51 F.3d 1051 (11th Cir., Mar. 27, 1995)(“Table of Decisions Without Reported Opinions, No. 94-8573”), cert. denied, 516 U.S. 912, 116 S.Ct. 297, 133 L.Ed.2d 204 (1995); In re Zedda, 169 B.R. 605 (Bankr.E.D.La.1994); In re Antar, 122 B.R. 788 (Bankr.S.D.Fla. 1990); In re George, 23 B.R. 686 (Bankr.S.D.Fla.1982). Four of those cases, Younger, Zedda, Antar, and George, are distinguishable. In each of those cases the fees, costs, and expenses claimed, were like the present case, incurred postpetition in Chapter 7 cases. They do not stand for the proposition that prepetition expenses may qualify for administrative expense status. The two remaining cases AmSouth cites, Martin Exploration and Trans World, are also not supportive of its claim. The administrative expense status the courts in Martin Exploration and Trans World, recognized was based on section 503(b)(3)(D). That section"
},
{
"docid": "17079694",
"title": "",
"text": "In re McLean Indus., Inc., 88 B.R. 36, 39 (Bankr.S.D.N.Y.1988) (finding the creditor provided a substantial contribution to the estate by objecting to the sale of the debtor’s subsidiary stock). Here, Channel substantially contributed to the estate by developing the only plan that was presented to the bankruptcy court and by waiving its prepetition claim. B. Self Interest Cellular also argues that Channel and Price may not recover on their § 503(b) claim because they acted in their own self-interest in proposing a reorganization plan. There appears to be a conflict among the circuits as to whether a creditor’s self-interest is important to the § 503(b) analysis. Compare, Speights & Runyan v. Celotex Corp. (In re Celotex Corp.), 227 F.3d 1336, 1338 (11th Cir.2000) (“Examining a creditor’s intent unnecessarily complicates the analysis of whether a contribution of considerable value or worth has been made.”); and Hall Fin. Group v. DP Partners, Ltd. P’ship (In re DP Partners Ltd. P’ship), 106 F.3d 667, 673 (5th Cir.1997) (holding that “a creditor’s motive in taking actions that benefit the estate has little relevance in the determination whether the creditor has incurred actual and necessary expenses in making a substantial contribution to a case.”), cert. denied, 522 U.S. 815, 118 S.Ct. 63, 139 L.Ed.2d 26 (1997); with Lebron v. Mechem Fin. Inc., 27 F.3d 937, 944 (3d Cir.1994) (holding that “ ‘substantial contribution’ should be applied in a manner that excludes reimbursement in connection with activities of creditors ... which are designed primarily to serve their own interests.”); and Haskins v. United States (In re Lister), 846 F.2d 55, 57 (10th Cir.1988) (“Efforts undertaken by a creditor solely to further his own self-interest ... will not be compensable, notwithstanding any incidental benefit accruing to the bankruptcy estate.”). We decline to choose between these competing approaches because we need not decide whether a creditor’s motivation may ever be relevant or dispositive in order to resolve this case. Any concern we have about evidence that Channel and Price benefitted from their own efforts is outweighed by the extent of the benefit those efforts conferred on the"
},
{
"docid": "14614404",
"title": "",
"text": "expense status for the Trustee’s expert witness fees and attorney fees and expenses. The application did erroneously rely upon section 330 of the Bankruptcy Code rather than Sections 503(b)(3) and (4), but the Court does not find this error fatal to the application. The application referred to the substantial contribution standard and contained sufficient detail to put the Debt- or on notice of the nature of the Trustee’s claim. This objection to the timeliness of the Trustee’s application is overruled. D. The Debtor’s objection appears to go beyond timeliness, however, and suggests that there must be an award of administrative expense to the Trustee other than attorney fees under section 503(b)(3) before the Trustee may seek recovery of his attorney fees and expenses under section 503(b)(4). In other words, the Debtor argues that the expenses awarded to the Trustee under section 503(b)(3) for making a substantial contribution in a case cannot consist of attorney fees. Because the Court has denied the Trustee’s request for reimbursement of his own direct expenses and expert witness fees, the Debtor argues that the Trustee has no remaining section 503(b)(3) claim and thus, is not entitled to recovery under section 503(b)(4). This issue appears to be one of first impression in this circuit. The Court has reviewed some seventy cases involving section 503(b)(4). A number of courts have permitted the recovery of attorney fees and expenses in cases where there is no mention of claims for recovery of expenses other than attorney fees. See, e.g., Lebron v. Mechem Fin., Inc., 27 F.3d 937 (3d Cir.1994); In re Flight Transp. Corp. Sec. Litig., 874 F.2d 576 (8th Cir.1989); In re Hooker Inv., Inc., 188 B.R. 117 (S.D.N.Y.1995); In re Decarbo, 152 B.R. 44 (W.D.Pa.1993); In re Warner, 141 B.R. 762 (M.D.Fla.1992); In re Encapsulation Int'l Inc., No. 96-31762, 1998 WL 801898, at *1 (Bankr.W.D.Tenn. Nov. 9, 1998). The language of sections 503(b)(3) and 503(b)(4) lends support to the Debtor’s argument, however. Section 503(b)(3) specifically relates to “actual, necessary expenses other than compensation and reimbursement specified in paragraph (4) of this subsection....” 11 U.S.C. § 503(b)(3) (emphasis"
},
{
"docid": "8031480",
"title": "",
"text": "attorney fees may be allowed as administrative expenses of the debtor’s estate under certain circumstances. Section 503 reads, in relevant part: (b) After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f) of this title, including— (3) the actual, necessary expenses, other than compensation and reimbursement specified in paragraph (4) of this subsection, incurred by— (D) a creditor, an indenture trustee, an equity security holder, or a committee representing creditors or equity security holders other than a committee appointed under § 1102 of this title, in making a substantial contribution in a ease under chapter 9 or 11 of this title; (4) reasonable compensation for professional services rendered by an attorney or an accountant of an entity whose expense is allowable under paragraph (3) of this subsection, based on the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title, and reimbursement for actual, necessary expenses incurred by such an attorney or accountant[.] Subsections 503(b)(3)(D) and 503(b)(4) have been described as “an accommodation between the twin objectives of encouraging ‘meaningful creditor participation in the reorganization process,’ and keeping fees and administrative expenses at a minimum so as to preserve as much of the estate as possible for the creditors.” Lebron v. Mechem Fin. Inc., 27 F.3d 937, 944 (3d Cir.1994) (internal citations omitted). See also Pierson & Gaylen v. Creel & Atwood (In re Consol. Bancshares, Inc.), 785 F.2d 1249, 1253 (5th Cir.1986); In re United States Lines, Inc., 103 B.R. 427, 429 (Bankr.S.D.N.Y.1989); General Elec. Capital Corp. v. Nigro (In re Appliance Store, Inc.), 181 B.R. 237, 242 (Bankr.W.D.Pa.1995). Administrative expenses under § 503(b) are priority claims paid directly from the bankruptcy estate and reduce the funds available for creditors and other claimants. Accordingly, § 503(b) is strictly construed. Mfrs. Hanover Trust Co. v. Bartsh (In re Flight Transp. Corp. Sec. Litig.), 874 F.2d 576, 581 (8th Cir.1989); In re United States Lines, Inc., 103 B.R. at 429. The bankruptcy court exercises its discretion to determine"
},
{
"docid": "12921034",
"title": "",
"text": "simply a method by which Congress intended to limit administrative expenses. Certainly, we recognize the Congressional goal of limiting administrative expense — sections 503(b)(3)(D) and (b)(4) have been described as “an accommodation between the twin objectives of encouraging ‘meaningful creditor participation in the reorganization process,’ and ‘keeping fees and administrative expenses at a minimum so as to preserve as much of the estate as possible for the creditors.’ ” Lebron v. Mechem Financial Inc., 27 F.3d 937, 944 (3d Cir.1994) (citations omitted). See also In re United States Lines, Inc., 103 B.R. at 429; In re Alumni Hotel Corp., 203 B.R. 624, 630 (Bankr.E.D.Mich.1996); In re Granite Partners, L.P., 213 B.R. at 440. Nevertheless, we do not agree that Congress intended to do so in such a capricious manner. Congress has, throughout the Code, demonstrated its manner of limiting administrative expenses. It does so by setting standards such as “reasonable,” “actual, necessary” and “substantial contribution,” or by setting out factors to be considered such as “based on the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title.” It does not do so by setting arbitrary lines which would hang the decision upon whether a creditor recovers tens of thousands of dollars of attorney’s fees on whether the creditor incurred the expense of a stamp. We surmise that the exclusion of professional compensation from § 503(b)(3) was designed not to require that the creditor incur an expense in addition to attorney’s fees and costs, but rather to channel those professional’s fees through the additional standards of (b)(4) — “reasonable ... based on the time, the nature, the extent, and the value of such services, and the cost of comparable services ...,” there being no express “reasonable” requirement for nonprofessional expenses incurred by a creditor under (b)(3). Recall that Collier’s points out “[i]t is important to observe the integration in section 503(b)(4) of the standards of section 330(a)(1) applicable to professional services rendered to the trustee and for which compensation is sought.” 4 Collier on Bankruptcy,"
},
{
"docid": "8986076",
"title": "",
"text": "to grant administrative expense priority pursuant to section 503(b)(3)(D) to prepetition fees and expenses incurred by creditors who make substantial contributions in Chapter 11 cases. Lebron v. Mechem Financial, Inc., 27 F.3d 937, 945 (3rd Cir.1994); Haskins v. United States (In re Lister), 846 F.2d 55, 57 (10th Cir.1988); In re Essential Therapeutics, Inc., 308 B.R. 170, 175 (Bankr.D.Del.2004); In re Alert Holdings, Inc., 157 B.R. 753, 758 (Bankr.S.D.N.Y.1993); Scott v. Mechem Financial, Inc. (In re Mechem Financial, Inc.), 152 B.R. 57, 60 (Bankr.W.D.Pa.1993), subsequently aff'd and remanded sub nom., Lebron v. Mechem Financial, Inc., 27 F.3d 937, 945 (3rd Cir.1994); In re Financial News Network Inc., 134 B.R. 732, 736 (Bankr.S.D.N.Y.1991); In re Texaco, Inc., 90 B.R. 622, 630-631 (Bankr.S.D.N.Y.1988); In re Russell Transfer, Inc., 59 B.R. 871, 872-873 (Bankr.W.D.Va.1986); In re Valley Isle Broadcasting, Ltd., 56 B.R. 505, 506 (Bankr.D.Hawai’i 1985); In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 572 (Bankr.D.Utah 1985); In re Med General, Inc., 17 B.R. 13, 14 (Bankr.D.Minn.1981). But, none of those cases, including Trans World and Martin Exploration, are on point. All involve Chapter 11 cases, which this one is not. In addition, all were decided under section 503(b)(3)(D), which, aside from not being applicable to Chapter 7 cases, is not the statute upon which AmSouth’s has based its administrative expense request. Moreover, any persuasive support that section 503(b)(3)(D) cases might lend is eroded because the prepetition fees and expenses that were allowed as administrative expenses, in addition to Trans World, were allowed in only four of the above. Those are Lebrón and Mechem Financial, (which are the same case), and Russell Transfer, and Med General. Furthermore, quite a number of other courts have reached the opposite result in substantially similar circumstances, both under section 503(b)(3)(D) and section 503(b)(1)(A). Those courts held in circumstances where a creditor renders services, or incurs expenses, or provides goods to a Chapter 11 debtor-in-possession prepetition, that the creditor was not entitled to an administrative expense priority even if those services, expenses, or products resulted in a postpetition benefit to the debt- or-in-possession. Examples include: In re Jartran,"
}
] |
417946 | "precise arguments they made below."" Yee v. City of Escondido , 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992). Because Sineneng-Smith has asserted a First Amendment claim throughout the litigation, her overbreadth challenge ""is - at most - a new argument to support what has been a consistent claim."" Citizens United v. FEC , 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (internal quotation marks omitted). We thus conclude that she preserved her overbreadth argument, and review it de novo. ANALYSIS The First Amendment dictates that ""Congress shall make no law ... abridging the freedom of speech."" ""[A] law imposing criminal penalties on protected speech is a stark example of speech suppression."" REDACTED Of course, like most constitutional principles, the right to free speech ""is not absolute."" Ashcroft v. Am. Civil Liberties Union , 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002). For example, laws or policies that target conduct but only incidentally burden speech may be valid. See, e.g. , Virginia v. Hicks , 539 U.S. 113, 122-23, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). Further, traditional narrow carve-outs to the First Amendment, ""long familiar to the bar,"" allow Congress to restrict certain types of speech ""including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct."" United States v. Stevens , 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (internal" | [
{
"docid": "22641078",
"title": "",
"text": "abuse in 1999). Congress also found that surrounding the serious offenders are those who flirt with these impulses and trade pictures and written accounts of sexual activity with young children. Congress may pass valid laws to protect children from abuse, and it has. E. g., 18 U. S. C. §§2241, 2251. The prospect of crime, however, by itself does not justify laws suppressing protected speech. See Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684, 689 (1959) (“Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech” (internal quotation marks and citation omitted)). It is also well established that speech may not be prohibited because it concerns subjects offending our sensibilities. See FCC v. Pacifica Foundation, 438 U. S. 726, 745 (1978) (“[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it”); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 874 (1997) (“In evaluating the free speech rights of adults, we have made it perfectly clear that ‘[sjexual expression which is indecent but not obscene is protected by the First Amendment’ ”) (quoting Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989)); Carey v. Population Services Int'l, 431 U. S. 678, 701 (1977) (“[T]he fact that protected speech may be offensive to some does not justify its suppression”). As a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear. The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children. See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring). While these categories may be prohibited without violating the First Amendment, none of them includes the speech prohibited by the CPPA. In his dissent from the opinion of the Court of Appeals, Judge Ferguson"
}
] | [
{
"docid": "15626071",
"title": "",
"text": "attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive shall be imprisoned for not more than 10 years or fined under this title, or both. For purposes of § 35(b), and according to the indictment, the specific crime that Williams falsely and maliciously threatened to commit was the placing of a destructive device or substance upon a civil aircraft used, operated, and employed in interstate commerce, in violation of 18 U.S.C. § 32(a)(2). In United States v. Alvarez, the United States Supreme Court recently discussed the constitutional limitations on content-based restrictions on speech. — U.S.-, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012). Although not couched specifically as an overbreadth analysis under the First Amendment, Alvarez greatly informs the instant discussion. “ ‘[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ ” Id. at 2543 (quoting Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002)). Accordingly, the Constitution demands that content-based restrictions on speech, such as we face here under §§ 35(b) and 844(e), be presumed invalid, and that the government bears the burden of showing their constitutionality. Id. at 2543-44. Indeed, only discrete categories of content-based restrictions on speech have been permitted to-date: (1) advocacy intended, and likely, to incite imminent lawless action, (2) obscenity, (3) defamation, (4) speech integral to criminal conduct, (5) so-called “fighting words,” (6) child pornography, (7) fraud, (8) true threats, and (9) speech presenting some grave and imminent threat the government has the power to prevent. Id. at 2544. “These categories have a historical foundation in the Court’s free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules.” Id. In response to Williams’ constitutional challenge in this action, the government first contends"
},
{
"docid": "23245627",
"title": "",
"text": "found — as it was required to do in order to convict — that the appellants had, in fact, agreed to take action in furtherance of violent jihad. 1. The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. The Supreme Court has explained that, “as a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” United States v. Stevens, 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (internal quotation marks omitted). Notwithstanding the foregoing, the First Amendment’s protections are not absolute, and the Court has approved government “restrictions upon the content of speech in a few limited areas, ... including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.” Id. (citations and internal quotation marks omitted). Moreover, the Court has been clear that prohibited conduct cannot “be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Wisconsin v. Mitchell, 508 U.S. 476, 484, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993) (internal quotation marks omitted). The statutes underlying the appellants’ various convictions serve, inter alia, to criminalize providing, and conspiring to provide, material support for terrorism, see 18 U.S.C. § 2339A; conspiring to murder, kidnap, or maim outside the United States, id. § 956(a); and conspiring to kill a federal officer or employee, id. § 1117. Often, those offenses involve speech. For example, the § 2339A convictions in United States v. Stewart were premised on evidence that the defendants provided material support — personnel—to a § 956(a) conspiracy by communicating to the conspirators the messages of “ ‘spiritual’ leader” Abdel Rahman that were intended to induce “criminal acts of violence.” See 590 F.3d 93, 112-16 (2d Cir.2009). The Second Circuit rejected the defendants’ First Amendment argument that, because “the government established only that they provided the underlying conspiracy with Ab-del Rahman’s ‘pure speech,’ ” the defendants “did not provide ‘personnel’ within any constitutional interpretation of section 2339A.” Id. at 115. In so doing,"
},
{
"docid": "20320648",
"title": "",
"text": "§ 704(c), (d). I The Act proscribes false verbal or written representations about one’s being awarded Congressionally authorized military honors and decorations. The parties do not dispute that the Act “seek[s] to regulate ‘only ... words.’ ” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (quoting Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972)). Moreover, the Act targets words about a specific subject: military honors. The Act is plainly a content-based regulation of speech. Content-based speech restrictions ordinarily are subjected to strict scrutiny. See United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). However, there is an exception to the ordinary rule for “certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). As explained recently by the Supreme Court in United States v. Stevens: “From 1791 to the present,” ... the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” These “historic and traditional categories long familiar to the bar[ ]” [ ] includ[e] obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.... — U.S. —, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010) (internal citations omitted); see also Chaplinsky, 315 U.S. at 572, 62 S.Ct. 766 (explaining that unprotected speech includes “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”); New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (listing, in defamation case, other low value speech categories as including: “insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business” (footnotes omitted)). The primary argument advanced by the government, and our dissenting colleague, is that the"
},
{
"docid": "23245626",
"title": "",
"text": "three sentencing opinions explaining the sentences imposed. These consolidated appeals followed. We possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). III. By their appeals, the appellants challenge their convictions in multiple respects. First, they contend that their convictions cannot stand because the trial court committed reversible error in its First Amendment analysis. Second, the appellants pursue recognition of several evidentiary errors, seeking relief by way of a new trial. Finally, they maintain that their motions for judgments of acquittal were erroneously denied, in that the trial evidence was legally insufficient to sustain any of their convictions. We begin with the First Amendment, followed by other issues. A. The appellants contend that the trial court committed reversible error in its handling of the argument that their speech espousing violent jihad was protected by the First Amendment. Concomitantly, the appellants assert that they never agreed to take action in connection with their beliefs and expressions, and thus were prosecuted purely for their offensive discourse. Of course, their argument ignores that the jury found — as it was required to do in order to convict — that the appellants had, in fact, agreed to take action in furtherance of violent jihad. 1. The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. The Supreme Court has explained that, “as a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” United States v. Stevens, 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (internal quotation marks omitted). Notwithstanding the foregoing, the First Amendment’s protections are not absolute, and the Court has approved government “restrictions upon the content of speech in a few limited areas, ... including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.” Id. (citations and internal quotation marks omitted). Moreover, the Court has been clear that prohibited conduct cannot “be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Wisconsin"
},
{
"docid": "21974159",
"title": "",
"text": "Amendment rights “for fear of criminal sanctions provided by a statute susceptible of application to protected expression.” Gooding v. Wilson, 405 U.S. 518, 520-21, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). The overbreadth doctrine has no application to this case. Because the su-permajority requirement does not regulate speech, it does not violate the First Amendment rights of persons not before the court. See Virginia v. Hicks, 539 U.S. 113, 118, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (holding that a plaintiff bringing an overbreadth challenge must demonstrate that the statute “punishes a substantial amount of protected speech, judged in relation to the statute’s plainly legitimate sweep” (internal quotation marks ■ omitted)). The Plaintiffs’ “overbreadth” argument is nothing more than a restatement of the First Amendment argument they make on their own behalf. Because the supermajority requirement presents no “realistic danger that the statute itself will significantly compromise recognized First Amendment protections,” Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800-01, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984), the overbreadth doctrine is not applicable. See United Reporting Publ’g, 528 U.S. at 40, 120 S.Ct. 483 (refusing to engage in an overbreadth analysis the challenged law was “not an abridgment of anyone’s right to engage in speech”). IV. Conclusion Because we find each of the Plaintiffs’ First Amendment theories flawed as a matter of law, we affirm the decision of the district court dismissing the case for failure to state a claim. The judgment of the district court is AFFIRMED. . Some of the Plaintiffs express no interest in a wildlife initiative, but merely oppose the supermajority requirement in principle. These Plaintiffs do not have standing because their speech is not affected. . To be sure, Ms. Brooks and her organization did not mount an initiative campaign during the three general elections between conducting the survey and enactment of Proposition S, from which the factfinder could infer that she had other reasons, apart from Proposition 5, for not pursuing an initiative. But at this stage of the litigation, our obligation is to draw all inferences in"
},
{
"docid": "20320710",
"title": "",
"text": "and the rule into an exception. A The First Amendment states, in relevant part: “Congress shall make no law ... abridging the freedom of speech.... ” U.S. Const, amend. I. “As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” United States v. Stevens, — U.S. -, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010) (alteration and quotation marks omitted) (quoting Ashcroft v. ACLU, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002)). A content-based restriction of constitutionally protected speech “can stand only if it satisfies strict scrutiny,” United States v. Playboy Ent. Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000), meaning that it “is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end,” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). But not all speech is entitled to First Amendment protection. Rather, “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem” because “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Included among these “classes of speech” are “obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.” Stevens, 130 S.Ct. at 1584 (citations omitted); see also Chaplinsky, 315 U.S. at 572, 62 S.Ct. 766. “Defamation” as a class of speech falls within the unprotected category of speech that the Court has referred to as “false statements of fact.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In Gertz, the Court explained the difference between false statements of fact and false ideas:"
},
{
"docid": "23142088",
"title": "",
"text": "of protected free speech, judged in relation to [its] plainly legitimate sweep.” Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (internal quotation marks omitted). A finding of overbreadth invalidates all enforcement of a challenged law, unless it can be saved by a limiting construction. Id. at 119, 123 S.Ct. 2191. Mindful that such relief is “strong medicine,” the law rigorously enforces the burden on the challenging party to demonstrate “substantial ” infringement of speech. United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (emphasis in original). Sabir’s recitation of the applicable legal standards and his conclusory declaration that § 2339B is overbroad do not come close to carrying this burden. As the Supreme Court stated in rejecting a First Amendment challenge to § 2339B, the statute leaves persons free to “say anything they wish on any topic,” including terrorism. Holder v. Humanitarian Law Project, 130 S.Ct. at 2722-23. It does not prohibit independent advocacy of any kind. See id. at 2723, 2728. It does not prohibit or punish mere membership in or association with terrorist organizations. See id. at 2723, 2730. Thus, it does not seek to suppress ideas or opinions in the form of ‘pure political speech.’ Rather, [it] prohibits] ‘material support,’ which most often does not take the form of speech at all. And when it does, the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations. Id. at 2723. Such circumstances do not evidence overbreadth. To the extent Sabir asserts that § 2339B is overbroad in limiting “a doctor’s right to practice medicine,” Appellant’s Br. at 14-15, he cites no authority locating such a right within the Constitution, much less in the First Amendment. The Supreme Court has long held that “there is no right to practice medicine which is not subordinate to the police power of the states ... and also to the power of Congress to make laws necessary and proper”"
},
{
"docid": "21644914",
"title": "",
"text": "11). The United States counters each of these arguments, citing well-established Supreme Court jurisprudence and emphasizing Attorney Durell’s failure to provide legal support for his arguments. A law is unconstitutionally overbroad under the First Amendment if “‘a substantial number’ of its applications are unconstitutional, ‘judged in relation to the statute’s plainly legitimate sweep.’” Vt. Right to Life Comm., Inc. v. Sorrell, 875 F.Supp.2d 376, 391 (D. Vt. 2012) (citing Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 n.6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)); see Virginia v. Hicks, 539 U.S. 113, 118-20, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). Said differently, an unconstitutionally overbroad statute violates the First Amendment if the statute poses a direct and substantial limitation on protected First Amendment activity. See Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 636-37, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). “The overbreadth claimant bears the burden of demonstrating, ‘from the text of [the law] and from actual fact,’ that substantial over-breadth exists.” Virginia v. Hicks, 539 U.S. at 122, 123 S.Ct. 2191. In its Reply, the United States argues Attorney Durell has failed to demonstrate any connection between the duty to disclose attorney’s fees pursuant to § 329(a) and the Debtors’ individual right to free speech. Moreover, the United States correctly points out that this statute’s disclosure requirements involve commercial speech (as opposed to noncommercial speech), and that this invokes the rational basis test. See Conn. Bar Ass’n v. United States, 620 F.3d 81, 93 (2d Cir. 2010). Bankruptcy disclosures constitute commercial speech because (1) they provide “a consumer debtor with information about what to expect in a commercial transaction,” (2) “the speech is situated in the federal bankruptcy system, a creature of law pervaded by commerce [and which] allows debtors to refashion commercial transactions in order to discharge debt obligations,” and (3) “[a] lawyer’s procurement of remunerative employment is a subject only marginally affected with First Amendment concerns ... and falls within the ... proper sphere of economic and professional regulation.” Id. at 94-95, 100. Additionally, this particular type of"
},
{
"docid": "15626072",
"title": "",
"text": "” Id. at 2543 (quoting Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002)). Accordingly, the Constitution demands that content-based restrictions on speech, such as we face here under §§ 35(b) and 844(e), be presumed invalid, and that the government bears the burden of showing their constitutionality. Id. at 2543-44. Indeed, only discrete categories of content-based restrictions on speech have been permitted to-date: (1) advocacy intended, and likely, to incite imminent lawless action, (2) obscenity, (3) defamation, (4) speech integral to criminal conduct, (5) so-called “fighting words,” (6) child pornography, (7) fraud, (8) true threats, and (9) speech presenting some grave and imminent threat the government has the power to prevent. Id. at 2544. “These categories have a historical foundation in the Court’s free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules.” Id. In response to Williams’ constitutional challenge in this action, the government first contends that §§ 35(b) and 844(e) fall directly within one of those categories already held constitutionally permissible— the restriction of true threats — and thus Williams’ statements are not protected by the First Amendment and the statutes proscribing the speech are constitutional. See Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (describing what would not be considered a “true threat,” including political hyperbole; and uninhibited, robust and caustic debate, which might include vituperative and abusive language, wholly dependent on the context in which spoken); see also United States v. Mabie, 663 F.3d 322, 330 (8th Cir.2011) (“A ‘true threat’ is defined as a ‘statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another.’ ” (quoting Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 624 (8th Cir.2002) (en banc))); United States v. Spruill, 118 F.3d 221, 228 (4th Cir.1997) (defining “true threat” contemplated by 18 U.S.C. § 844(e) as a “serious threat as distinguished from words"
},
{
"docid": "20606164",
"title": "",
"text": "claim that Louisiana Department of Revenue Information Bulletin No. 18-024 violates their First Amendment rights. The First Amendment to the United States Constitution declares that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. “As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” United States v. Stevens, 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (internal quotation marks and citation omitted). And the First Amendment also means that the government cannot compel a person to speak or to parrot a favored viewpoint. Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (“We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.”); W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.”). In the context of compelled speech, courts must discern whether a law “regulates conduct, not speech”; only infringements of speech, and not conduct, warrant First Amendment protection. Rumsfeld v. Forum for Academic & Inst. Rights, 547 U.S. 47, 60, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (distinguishing regulation of what someone “must do ” from “what they may or may not say ” (emphasis in original)). Bulletin No. 13-024 requires same-sex couples who are lawfully married in other states to nevertheless describe that they are of single status on their Louisiana state income tax returns. Plaintiffs say that compels speech. Defendants answer that the targeted bulletin merely prescribes conduct. They add that the required conduct is necessary to an essential government function, collecting state taxes. They stress"
},
{
"docid": "11415307",
"title": "",
"text": "doubt to be a serious expression of an intent to injure another person.” At her change-of-plea hearing, Martinez acknowledged she understood the plea agreement, and the Government rhad the parties’ factual stipulation'aloud in court. After the district court accepted Martinez’s guilty plea,, the court ultimately ordered Martinez to pay the Police Department $5,350.89 in restitution for the costs incurred securing and safeguarding the schools and students in Broward County, Florida, as a result of her offense. Martinez appealed. II. THE FIRST AMENDMENT AND TRUE THREATS Pursuant to her conditional guilty plea, Martinez brings two constitutional challenges under the First Amendment. First, Martinez contends her indictment was constitutionally deficient under Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), because it did not allege she subjectively intended to convey a threat to injure others. Second, Martinez argues that, if § 875(c) does not require subjective intent, the statute is unconstitutionally overbroad. A. True Threats and Intent While the First Amendment generally prohibits the Government from restricting speech based on its message or viewpoint, Ashcroft v. ACLU, 535 U.S. 564, 573, 122 S.Ct. 1700, 1707, 152 L.Ed.2d 771 (2002), the First Amendment’s free-speech protections are not absolute, see Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). In certain narrowly drawn categories, the Government may permissibly restrict speech on the basis of content. United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010). These categories of unprotected speech do not require case-by-case balancing because the harms they impose “so overwhelmingly outweigh[]” any First Amendment concerns that the “balance of competing interests is clearly struck.” New York v. Ferber, 458 U.S. 747, 763-64, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982). “True threats” are one such category of unprotected speech. United States v. Alvarez, — U.S.-, 132 S.Ct. 2537, 2544, 183 L.Ed.2d 574 (2012) (plurality opinion). Although statutes penalizing speech “must be interpreted with the commands of the First Amendment clearly in mind,” Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d"
},
{
"docid": "18240770",
"title": "",
"text": "of public interest and concern. ‘[T]he freedom to speak one’s mind is not only an aspect of individual liberty — and thus a good unto itself — but also is essential to the common quest for truth and the vitality of society as a whole.’ ” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50-51, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503-04, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)). “[A]s a general matter, ... government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (quotation marks omitted). And in most cases, a content-based restriction on speech can withstand a First Amendment attack only if it satisfies strict scrutiny — that is, only if the challenged legislation is narrowly drawn to serve a compelling governmental interest. R.A.V. v. City of St. Paul, 505 U.S. 377, 395, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Given this case law, the Stolen Valor Act, a content-based restriction, is “presumptively invalid, and the government bears the burden to rebut that presumption.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 817, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) (quotation omitted). And doubly so since the Act criminalizes the speech it condemns. But despite the First Amendment’s open-ended language, not all categories of speech receive full constitutional protection. The Supreme Court, in a long line of cases, has recognized Congress may regulate some types of speech without facing constitutional scrutiny. For example, in Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), the Supreme Court upheld a law prohibiting “fighting words,” reasoning the Constitution does not afford shelter to words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” In doing so, the Court observed, “it is well understood that the right of free speech is not absolute at all times"
},
{
"docid": "12409839",
"title": "",
"text": "disagreement with its content, so long as the message is delivered in private from a doctor to her patient. Modifying the level of scrutiny applicable to content-based restrictions in this manner is “startling and dangerous,” and courts are not to adopt “free-floating test[s] for First Amendment coverage” in light of the substantial and expansive threats to free speech posed by content-based restrictions. United States v. Stevens, 559 U.S. 460, 470, 130 S.Ct. 1577, 1585, 176 L.Ed.2d 435 (2010); see also United States v. Alvarez, — U.S. -, 132 S.Ct. 2537, 2544, 183 L.Ed.2d 574 (2012) (plurality opinion). Indeed, “content-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories of expression long familiar to the bar.” Alvarez, 132 S.Ct. at 2544 (internal quotation marks omitted). Private speech between doctors and patients does not make this list-a list re served for things like obscenity, defamation, inciting violence, speech integral to criminal conduct, child pornography, and fraud. See id. Precedent also forbids creating exceptions to First Amendment review out of whole cloth: “the First Amendment stands against any ‘freewheeling authority to declare new categories of speech outside the scope of the First Amendment.’ Stevens, 559 U.S. at [472], 130 S.Ct., at 1586.” Alvarez, 132 S.Ct. at 2547. But creating a new category of speech immune from First Amendment review is exactly what the Majority has done here. “Before exempting a category of speech from the normal prohibition on content-based restrictions ... the Court must be presented with ‘persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription,’ Brown v. Entertainment Merchants Assn., 564 U.S. -, -, 131 S.Ct. 2729, 2734, 180 L.Ed.2d 708 (2011).” Alvarez, 132 S.Ct. at 2547. If anything, the speech restricted here is part of a tradition of exceptional protection, and it certainly is not within an area traditionally subject to “proscription.” The Court has explicitly recognized the importance of a free flow of information between doctor and patient, which this Act explicitly and directly limits. “[T]he physician must know"
},
{
"docid": "11415308",
"title": "",
"text": "viewpoint, Ashcroft v. ACLU, 535 U.S. 564, 573, 122 S.Ct. 1700, 1707, 152 L.Ed.2d 771 (2002), the First Amendment’s free-speech protections are not absolute, see Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). In certain narrowly drawn categories, the Government may permissibly restrict speech on the basis of content. United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010). These categories of unprotected speech do not require case-by-case balancing because the harms they impose “so overwhelmingly outweigh[]” any First Amendment concerns that the “balance of competing interests is clearly struck.” New York v. Ferber, 458 U.S. 747, 763-64, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982). “True threats” are one such category of unprotected speech. United States v. Alvarez, — U.S.-, 132 S.Ct. 2537, 2544, 183 L.Ed.2d 574 (2012) (plurality opinion). Although statutes penalizing speech “must be interpreted with the commands of the First Amendment clearly in mind,” Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969), objective threats of violence contribute nothing to public discourse and enjoy no First Amendment protection, see R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 S.Ct. 2538, 2542-43, 120 L.Ed.2d 305 (1992). The critical issue for the true threats doctrine is distinguishing true threats from mere political hyperbole; while the former are outside the First Amendment, the latter is entitled to full constitutional protection. See Watts, 394 U.S. at 707-08, 89 S.Ct. at 1401-02. Martinez argues that the Supreme Court’s decision in Virginia v. Black draws the distinction between true threats and protected speech based on the speaker’s subjective intent. Relying on Ninth Circuit precedent, Martinez contends Black redefined true threats to require proof the speaker subjéctively intended to threaten listeners. See United States v. Bagdasari-an, 652 F.3d 1113, 1116 (9th Cir.2011) (holding that a threat — even one “objective observers would reasonably perceive ... as a threat of injury or death” — cannot be prosecuted unless the speaker subjectively intended the speech to be a threat). Therefore, Martinez claims, her"
},
{
"docid": "20320709",
"title": "",
"text": "to apply the highest level of scrutiny in [its] analysis” of the Act, id. at 37; see also id. at 3 (“[R]egulations of false factual speech must ... be subjected to strict scrutiny....”). Standing on these startling premises, the majority delivers its final blow: the Act fails strict scrutiny and is thus unconstitutional not only as applied to Alvarez, but in all its applications. See id. at 45-46. I would hold that the Act is constitutional as applied to Alvarez and that the Act is not unconstitutionally overbroad. Because the majority has rewritten established First Amendment law, I respectfully dissent. I Before turning to Alvarez’s as-applied and facial challenges and the majority’s errors with respect to the particular elements of this case, I am going to begin by discussing the First Amendment framework under which the Supreme Court analyzes false statements of fact, which involves a general rule and a series of exceptions. I then explain why I think the majority has misread the cases and, in the process, turned the exceptions into the rule and the rule into an exception. A The First Amendment states, in relevant part: “Congress shall make no law ... abridging the freedom of speech.... ” U.S. Const, amend. I. “As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” United States v. Stevens, — U.S. -, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010) (alteration and quotation marks omitted) (quoting Ashcroft v. ACLU, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002)). A content-based restriction of constitutionally protected speech “can stand only if it satisfies strict scrutiny,” United States v. Playboy Ent. Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000), meaning that it “is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end,” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). But not all speech is entitled to First Amendment"
},
{
"docid": "12409838",
"title": "",
"text": "scrutiny. I believe we should decide this case based on this straightforward authority. A. Recently, in Sorrell, the Court invalidated a “statute [that] disfavors marketing, that is, speech with a particular content. More than that, the statute disfavors specific speakers, namely pharmaceutical manufacturers.” 131 S.Ct. at 2663. Here, the Act directly prohibits firearm related inquiries and record keeping, as well as persistent discussions on the topic, “that is, speech with a particular content. More than that, the statute disfavors specific speakers, namely,” doctors. See id. Thus, “[t]he law on its face burdens disfavored speech by disfavored speakers, [and] [i]t follows that heightened judicial scrutiny is warranted.” Id. at 2663-64. Indeed, “[t]he First Amendment requires heightened scrutiny whenever the government creates a regulation of speech because of disagreement with the message it conveys.” Id. at 2664 (emphasis added) (internal quotation marks omitted). The word “whenever” does not invite exceptions, but the Majority creates one anyway. Notwithstanding the Court’s command, the Majority concludes that no First Amendment scrutiny applies even when a message is regulated based on disagreement with its content, so long as the message is delivered in private from a doctor to her patient. Modifying the level of scrutiny applicable to content-based restrictions in this manner is “startling and dangerous,” and courts are not to adopt “free-floating test[s] for First Amendment coverage” in light of the substantial and expansive threats to free speech posed by content-based restrictions. United States v. Stevens, 559 U.S. 460, 470, 130 S.Ct. 1577, 1585, 176 L.Ed.2d 435 (2010); see also United States v. Alvarez, — U.S. -, 132 S.Ct. 2537, 2544, 183 L.Ed.2d 574 (2012) (plurality opinion). Indeed, “content-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories of expression long familiar to the bar.” Alvarez, 132 S.Ct. at 2544 (internal quotation marks omitted). Private speech between doctors and patients does not make this list-a list re served for things like obscenity, defamation, inciting violence, speech integral to criminal conduct, child pornography, and fraud. See id. Precedent also forbids creating exceptions to First Amendment"
},
{
"docid": "20320649",
"title": "",
"text": "1791 to the present,” ... the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” These “historic and traditional categories long familiar to the bar[ ]” [ ] includ[e] obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.... — U.S. —, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010) (internal citations omitted); see also Chaplinsky, 315 U.S. at 572, 62 S.Ct. 766 (explaining that unprotected speech includes “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”); New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (listing, in defamation case, other low value speech categories as including: “insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business” (footnotes omitted)). The primary argument advanced by the government, and our dissenting colleague, is that the speech targeted by the Act— demonstrably false statements about having received military honors—fits within those “well-defined” and “narrowly limited” classes of speech that are historically unprotected by the First Amendment. The government and the dissent rely on Gertz v. Robert Welch, Inc. and its progeny for the proposition that “the erroneous statement of fact is not worthy of constitutional protection.” 418 U.S. 323, 340, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In Gertz, the Court classified false statements of fact as “belonging] to that category of utterances” that “ ‘are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ ” Id. at 340, 94 S.Ct. 2997 (quoting Chaplinsky, 315 U.S. at 572, 62 S.Ct. 766). Thus, the government and the dissent conclude, regulations of false factual speech may be proscribed without constitutional problem—or even any constitutional scrutiny. We disagree. Gertz does not stand for the absolute proposition advocated by the government and the dissent."
},
{
"docid": "22556614",
"title": "",
"text": "to the statute’s plainly legitimate sweep.” Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (internal quotation marks omitted). The overbreadth must be substantial “not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications.” Id. at 120, 123 S.Ct. 2191. It is also worth noting that when, as here, a statute is addressed to conduct rather than speech, an overbreadth challenge is less likely to succeed. See id. at 124, 123 S.Ct. 2191 (“Rarely, if ever, will an over-breadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating).”). Hammoud argues that § 2339B is overbroad because (1) it prohibits mere association with an FTO, and (2) it prohibits such plainly legitimate activities as teaching members of an FTO how to apply for grants to further the organization’s humanitarian aims. As discussed above, § 2339B does not prohibit mere association with an FTO and therefore is not overbroad on that basis. Regarding Ham-moud’s second overbreadth argument, it may be true that the material support prohibition of § 2339B encompasses some forms of expression that are entitled to First Amendment protection. Cf. Humanitarian Law Project, 205 F.3d at 1138 (holding that “training” prong of material support definition is vague because it covers such forms of protected expression as “instructing] members of a designated group on how to petition the United Nations to give aid to their group”). Ham-moud has utterly failed to demonstrate, however, that any overbreadth is substantial in relation to the legitimate reach of § 2339B. See Hicks, 539 U.S. at 122, 123 S.Ct. 2191 (“The overbreadth claimant bears the burden of demonstrating, from the text of the law and from actual fact, that substantial overbreadth exists.” (alteration & internal quotation marks omitted)). C. Vagueness Hammoud next argues that the term “material support” is unconstitutionally vague. “The void-for-vagueness doctrine requires that penal statutes define crimes so that ordinary people can understand the conduct prohibited and so that arbitrary and discriminatory"
},
{
"docid": "746441",
"title": "",
"text": "is justified by the government’s interest. See Broadrick, 413 U.S. at 615, 93 S.Ct. 2908; cf. Taxpayers for Vincent, 466 U.S. at 810, 104 S.Ct. 2118 (“[T]he application of the ordinance in this case responds precisely to the substantive problems which legitimately concerns the City.”). The third is determining the likely chilling effects of the statute, stated otherwise as the statute’s burden on speech. See Broadrick, 413 U.S. at 615, 93 S.Ct. 2908; see also Virginia v. Hicks, 539 U.S. 113, 119, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (unanimous); Taxpayers for Vincent, 466 U.S. at 800 n. 19, 104 S.Ct. 2118; New York v. Ferher, 458 U.S. 747, 773, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). The last step involves weighing these various factors together, paying particular attention to the burden on speech when judging the illegitimate versus legitimate sweep of the statute. Broadrick, 413 U.S. at 615, 93 S.Ct. 2908 (“[Particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”); see Watchtower Bible and Tract Soc’y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 165, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) (“We must also look, however, to the amount of speech covered by the ordinance and whether there is an appropriate balance between the affected speech and the governmental interests that the ordinance purports to serve.”). A. Type of Speech at Issue Before engaging in the overbreadth analysis, we must first identify whether the expression at issue is conduct or speech. Conduct is generally considered more amenable to regulation than speech, because while particular conduct could be expressive, it may not be inherently expressive like speech. See Free Speech Coal, 535 U.S. at 253, 122 S.Ct. 1389 (“To preserve [free speech] freedoms, and to protect speech for its own sake, the Court’s First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct.”); Broadrick, 413 U.S. at 615, 93 S.Ct. 2908 (noting that a statute must be"
},
{
"docid": "9720324",
"title": "",
"text": "S.Ct. 936, 94 L.Ed. 1255 (1950) (declining to apply habeas corpus right to U.S.-controlled military prison in Germany); see also Al Maqaleh v. Hagel, 738 F.3d 312 (D.C.Cir.2013) (declining to apply habeas corpus right to U.S. military base in Afghanistan); Al Maqaleh v. Gates, 605 F.3d 84 (D.C.Cir. 2010) (same). Therefore, Bahlul had no First Amendment rights as a non-U.S. citizen in Afghanistan when he led bin Laden’s media operation. In addition, even if the First Amendment did apply to Bahlul’s speech in Afghanistan, the Supreme Court has made clear that the First Amendment does not protect speech such as Bahlul’s that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (quoting Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969)); see also United States v. Stevens, 559 U.S. 460, 471, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (First Amendment not understood to protect “speech or writing used as an integral part of conduct in violation of a valid criminal statute”). That is particularly true when the Government seeks “to prevent imminent harms in the context of international affairs and national security.” Holder v. Humanitarian Law Project, 561 U.S. 1, 35, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010); see United States v. Rahman, 189 F.3d 88, 116-18 (2d Cir.1999). Under that traditional test, the speech encompassed within the charges against Bahlul—including a terrorist recruitment video produced on foreign soil that “was aimed at inciting viewers to join al Qaeda, to kill Americans, and to cause destruction”—was not protected speech under the First Amendment. United States v. Bahlul, 820 F.Supp.2d 1141, 1249 (C.M.C.R.2011) (en banc). The Constitution is not a suicide pact. Cf. Terminiello v. City of Chicago, 337 U.S. 1, 37, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) (Jackson, J., dissenting). VI A few words in response to the majority opinion: I find the majority opinion sur prising both in what it decides and in what it declines to decide. First, I"
}
] |
246689 | (R. 17). But The ALJ’s reasoning runs counter to the CDC’s published framework for evaluating and diagnosing CFS. Chronic fatigue is defined as “self reported persistent or relapsing fatigue lasting six or more consecutive months.” Reddick 157 F.3d at 726 (citing Centers for Disease Control, The Chronic Fatigue Syndrome: A Comprehensive Approach to its Definition and Study, 121 Annals of Internal Medicine 954 (1994)). Locke’s complaints and Dr. Salvato’s evaluation cannot be discounted simply due to their subjective basis, when the disease’s main symptom, persistent fatigue, is necessarily self-reported. Furthermore, because the methods for diagnosing chronic fatigue syndrome are limited, the credibility of the claimant’s testimony regarding her symptoms takes on “substantially increased” significance in the ALJ’s evaluation of the evidence. REDACTED The Sixth Circuit also recently decided a disability claim based on CFS and other disorders. In Buxton v. Halter, 246 F.3d 762, 763-64 (6th Cir.2001), the ALJ found that the claimant suffered from severe but non-disabling impairments of CFS, chemical sensitivity syndrome, depression, and somatoform disorder. Unlike Reddick, the claimant’s treating physician concluded that despite CFS she was “fully capable of performing” work-related activities, and even questioned the diagnosis of CFS itself. Id., at 765-767. In fact, only one out of nine medical experts who examined the claimant, including two Social Security examiners, concluded that she was “unable to perform [at] a functional level of output” due to CFS. Id., at 768. Aso distinguishable from Reddick is the claimant’s somatoform disorder | [
{
"docid": "11220485",
"title": "",
"text": "validated in scientific studies; moreover, no definitive treatments for it exist. Recent longitudinal studies suggest that some persons affected by the chronic fatigue syndrome improve with time but that most remain functionally impaired for several years. Id. at 953. The guidelines recommend CFS classification if, after other diagnostic possibilities have been excluded through a series of clinical examinations and testing, the subject reports persistent or relapsing fatigue for 6 or more consecutive months and exhibits four or more of the following symptoms concurrently for 6 or more consecutive months: 1. impaired memory or concentration; 2. sore throat; 3. tender cervical or axillary lymph nodes; 4. muscle pain; 5. multi-joint pain; 6. new headaches; 7. unrefreshing sleep; and, 8. post-exertion malaise. Id. at 955. As suggested by these guidelines and by the Secretary’s own policy statements, and as several cases have held, CFS is recognized by the Social Security Administration as a disease which, while not specifically addressed in the Listings, may produce symptoms which “significantly impair [a] claimant’s ability to perform even sedentary work_” Rose v. Shalala, supra, 34 F.3d at 17; see also Sisco v. U.S. Dept. of Health and Human Services, 10 F.3d 739 (10th Cir. 1993); Thaete v. Shalala, 826 F.Supp. 1250 (D.Colo.1993); Reed v. Secretary of Health and Human Services, 804 F.Supp. 914 (E.D.Mich.1992). In such cases, because the methods for diagnosing chronic fatigue syndrome are limited, the credibility of the claimant’s testimony regarding her symptoms takes on “substantially increased” significance in the ALJ’s evaluation of the evidence. Reed, supra, 804 F.Supp. at 918. For example, in Williams v. Shalala, supra, the ALJ found that the plaintiff had failed to establish disability based on CFS. In doing so, the ALJ rejected the plaintiffs testimony regarding her subjective complaints of pain as “wholly unsubstantiated by objective medical findings.” 1995 WL 328487 at *6. Upon review, the court found that the ALJ’s rejection of the plaintiffs credibility was not supported by substantial evidence. According to the court, because the plaintiffs complaints “were entirely consistent with the symptomology for CFS recognized by the Secretary in § DI 24575.005 ...,”"
}
] | [
{
"docid": "22649309",
"title": "",
"text": "Instead, he quotes a general comment by a consulting examiner, Dr. Ng, about the facility with which CFS symptoms can be exaggerated. This fact is true, and makes CFS cases difficult to adjudicate, but a general observation such as this in an insufficient reason to discount Claimant’s credibility. In fact, Dr. Ng concluded that Claimant met the CDC’s criteria for the diagnosis of CFS and was disabled. Nor did the ALJ emphasize that four other doctors agreed with the CFS diagnosis, a fifth doctor diagnosed possible CFS, and a sixth diagnosed a fatigue syndrome. None of the examining doctors provided medical evidence countering the CFS diagnosis. Claimant tested positive for the Epstein-Barr antibody, which frequently correlates with CFS. She exhibited the constellation of symptoms often associated with CFS, including a persistent low-grade fever. She also underwent years of testing and examination to rule out other possible illnesses. In addition, the record shows that Claimant periodically advised her doctors when she was feeling somewhat better. This is unlikely behavior for a person intent on overstating the severity of her ailments. We conclude that the ALJ provided unsatisfactory reasons for discounting Claimant’s credibility, and that his findings were unsupported by substantial evidence based on the record as a whole. 2. Residual Functional Capacity The ALJ also failed to take into account the debilitating effects of CFS when making his determination, at step four, that Claimant had the residual functional capacity to perform her past work. Although the ALJ found that “the medical evidence establishes that Claimant has chronic fatigue syndrome,” the ALJ’s evaluation of functional capacity ignored the key symptom of CFS, which is persistent fatigue. Social Security regulations define residual functional capacity as the “maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirements of jobs.” 20 C.F.R. 404, Subpt. P, App. 2 § 200.00(c) (emphasis added). In evaluating whether a claimant satisfies the disability criteria, the Commissioner must evaluate the claimant’s “ability to work on a sustained basis.” 20 C.F.R. § 404.1512(a); Lester, 81 F.3d at 833 (internal quotation marks omitted). The regulations further"
},
{
"docid": "22649296",
"title": "",
"text": "U.S.C. §§ 401 et seq., alleging that she had been unable to work since October 4,1989 due to CFS. Claimant’s application was denied initially and upon reconsideration by the ALJ. The ALJ’s decision became the final decision of the Commissioner when the Appeals Council declined review. Claimant filed a timely complaint for review by the federal district court. The parties each filed motions for summary judgment. The district court denied Claimant’s motion and granted the Commissioner’s. Claimant filed a timely appeal. Claimant was born in 1956 and was thirty eight years old at the time of her hearing before the ALJ. Her education includes high school and some secretarial schooling. She last worked in 1989 as a payroll clerk at Adept Technology, processing time cards and preparing computerized reports. During her tenure at Adept, she complained of severe fatigue and an inability to stay awake to perform her work. She was put on disability in October 1989. At this time, Claimant was seeing her treating physician, Dr. Jacobson, who diagnosed a viral syndrome. In April 1990, he diagnosed a fatigue syndrome, with a possible viral illness and possible narcolepsy, also noting depression. Dr. Jacobson referred Claimant to a neurologist, Dr. Li-kowsky, who examined her in May 1990 and concluded that she probably had a fatigue syndrome, possibly with a psychological basis. Dr. Likowsky indicated that other possible diagnoses should be eliminated, and he ordered, among other examinations, a psychiatric evaluation. Claimant was examined by a psychologist, Dr. Cheng, in August 1990. She informed Dr. Cheng that she first experienced persistent fatigue in 1988. He noted that CFS required diagnosis by exclusion and recommended lab testing. Dr. Jacobson diagnosed CFS in October 1990. In November, at the request of Claimant’s long-term disability carrier, GroupAm-erica Insurance, Claimant was examined by Dr. Charney, an internal medicine and infectious disease specialist. Dr. Charney found that Claimant met the major criteria for CFS established by the Centers for Disease Control (“CDC”). He also noted the presence of the Epstein-Barr antibody, frequently associated with CFS. Dr. Charney described “severe fatigue” and stated in his report to"
},
{
"docid": "22649316",
"title": "",
"text": "Dr. Charney: The consultative examinations of Drs. Wood and Moseley, which the Administrative Law Judge found to be objective, found the claimant capable of work. The Administrative Law Judge does not credit the assessments of Dr. Jacobson or Dr. Charney. These conflict with the more objective assessments in the consultative examinations of Drs. Moseley and Wood and are based on the subjective complaints of the claimant who was found not very credible. We conclude that the ALJ’s rejection of the opinions of Dr. Jacobson and Dr. Char-ney on the premise that they were based on the subjective complaints of the claimant is ill-suited to this CFS case. The ALJ’s reasoning runs counter to the CDC’s published framework for evaluating and diagnosing CFS. Chronic fatigue is defined as “self-reported persistent or relapsing fatigue lasting six or more consecutive months.” Centers for Disease Control, The Chronic Fatigue Syndrome: A Comprehensive Approach to its Definition and Study, 121 Annals of Internal Medicine 954 (1994) (emphasis added). Although CFS is accompanied by symptoms such as body aches, low-grade fevers, memory problems, headaches, and extended flu-like symptoms, which Claimant manifested, the presence of persistent fatigue is necessarily self-reported. The final diagnosis is made “by exclusion,” or ruling out other possible illnesses. Dr. Jacobson followed Claimant’s progress for three and a half years, referred her to several specialists and conducted extensive lab testing to rule out other possible illnesses. The ALJ decision cited a general comment made by Dr. Ng that because “it was the job of the treating physician to be compassionate and supportive of the patient,” the treating physician would have no motivation to discount a patient’s complaints of CFS symptoms. This skepticism of a treating physician’s credibility flies in the face of clear circuit precedent. See Lester, 81 F.3d at 833 (“The treating physician’s continuing relationship with the claimant makes him especially qualified to evaluate reports from examining doctors, to integrate the medical information they provide, and to form an overall conclusion as to functional capacities and limitations, as well as to prescribe or approve the overall course of treatment.”). The ALJ decision"
},
{
"docid": "11220483",
"title": "",
"text": "fatigue syndrome. This policy provides, in pertinent part as follows: Chronic Fatigue Syndrome (CFS) ... is a systemic disorder consisting of a complex of variable signs and symptoms which may vary in duration and severity. The etiology and pathology of the disorder have not been established. Although there are no generally accepted criteria for the diagnosis of cases of CFS, an operational concept is used by the medical community. There is no specific treatment, and manifestations of the syndrome are treated symptomatically. CFS is characterized by the presence of unexplained fatigue and by the chronicity of other symptoms. The most prevalent symptoms include episodes of low-grade fever, myalgias, headache, painful lymph nodes, and problems with memory and concentration. These symptoms fluctuate in frequency and severity and may be seen to continue over a period of many months. Physical examination may be within normal limits. Individual eases must be adjudicated on the basis of the totality of the evidence, including the clinical course from the onset of the illness, symptoms, signs, and laboratory findings. Consideration should be given to onset, duration, severity and residual functional capacity following the sequential evaluation process. Program Operations Manual System (“POMS”) § DI 24575.005 (1993) {quoted in Rose v. Shalala, 34 F.3d 13, 16-17 (1st Cir.1994)); see also Williams v. Shalala, 1995 WL 328487, at *4-5 (W.D.N.Y.). The Secretary’s policy is further reflected in professional guidelines for the evaluation and study of CFS cases, developed by the International Chronic Fatigue Syndrome Study Group. See Fudka, Straus, Hiekie, Sharpe, Dobbins and Komaroff, The Chronic Fatigue Syndrome: A Comprehensive Approach to Its Definition and Study, Annals of Internal Medicine, Vol. 121, No. 12, pp. 953-59 (December 15, 1994). These guidelines describe CFS as follows: ... a clinically defined condition characterized by severe disabling fatigue and a combination of symptoms that prominently features self-reported impairments in concentration and short-term memory, sleep disturbances, and musculoskeletal pain. Diagnosis of the chronic fatigue syndrome can be made only after alternative medical and psychiatric causes of chronic fatiguing illness have been excluded. No pathogno-monic signs or diagnostic tests for this condition have been"
},
{
"docid": "22649295",
"title": "",
"text": "HUG, Chief Judge. This case involves a claim for Social Security disability benefits by Susan Reddick (“Claimant”) who was diagnosed with Chronic Fatigue Syndrome (“CFS”). The Administrative Law Judge (“ALJ”) found that Claimant suffered from CFS but that she was not disabled because the disease did not undermine her ability to perform substantial gainful work. The district court concluded that the ALJ’s decision was supported by substantial evidence and granted summary judgment for the Commissioner. A principal issue in this ease is whether the ALJ was justified in discounting the testimony of Claimant, her treating doctor, and an examining doctor concerning her disability from fatigue, and instead relying upon the testimony of two consultative examiners who concluded that she was not disabled. We have jurisdiction under 28 U.S.C. § 1291 and we reverse the judgment of the district court and remand with instructions to remand to the ALJ for an award of benefits. I. Procedural and Factual Background Claimant filed an application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging that she had been unable to work since October 4,1989 due to CFS. Claimant’s application was denied initially and upon reconsideration by the ALJ. The ALJ’s decision became the final decision of the Commissioner when the Appeals Council declined review. Claimant filed a timely complaint for review by the federal district court. The parties each filed motions for summary judgment. The district court denied Claimant’s motion and granted the Commissioner’s. Claimant filed a timely appeal. Claimant was born in 1956 and was thirty eight years old at the time of her hearing before the ALJ. Her education includes high school and some secretarial schooling. She last worked in 1989 as a payroll clerk at Adept Technology, processing time cards and preparing computerized reports. During her tenure at Adept, she complained of severe fatigue and an inability to stay awake to perform her work. She was put on disability in October 1989. At this time, Claimant was seeing her treating physician, Dr. Jacobson, who diagnosed a viral syndrome. In April"
},
{
"docid": "22649322",
"title": "",
"text": "evidence of record, but also to the type, dosage, effectiveness, and side effects of any prescribed pain medication and to other treatment for pain symptoms. The claimant’s daily activities and functional restrictions during the relevant period have been considered as well in evaluating the credibility of the claimant’s alleged disabling pain complaints. Although SSR 88-13 applies to the evaluation of pain “and other symptoms,” the ALJ considered only pain and its effect on Claimant’s activities and the potential relief by medication, rather than fatigue which is the basis of Claimant’s disability claim. The ALJ’s focus on pain medication and treatment is misplaced, as the CDC has made it ■ clear that no definitive treatment for CFS exists. But even more salient is the fact that the ALJ failed to consider the Program Operations Manual System (“POMS”) guidelines on CFS issued by the Social Security Administration in 1993. The POMS policy states in pertinent part: Chronic Fatigue Syndrome (CFS), previously known as Chronic Epstein-Barr Virus Syndrome, and also currently called Chronic Fatigue and Immune Dysfunction Syndrome, is a systemic disorder consisting of a complex of variable signs and symptoms which may vary in duration and severity. The etiology and pathology of the disorder have not been established. Although there are no generally accepted criteria for the diagnosis of cases of CFS, an operational concept is used by the medical community. There is no specific treat ment, and manifestations of the syndrome are treated symptomatically. CFS is characterized by the presence of persistent unexplained fatigue and by the chronicity of other symptoms. The most prevalent symptoms include episodes of low-grade fever, myalgias, headache, painful lymph nodes, and problems with memory and concentration. These symptoms fluctuate in frequency and severity and may be seen to continue over a period of many months. Physical examination may be within normal limits. Individual cases must be adjudicated on the basis of the totality of the evidence, including the clinical course from the onset of the illness, symptoms, signs, and laboratory findings. Consideration should be given to onset duration, severity and residual functional capacity following the sequential"
},
{
"docid": "22649323",
"title": "",
"text": "is a systemic disorder consisting of a complex of variable signs and symptoms which may vary in duration and severity. The etiology and pathology of the disorder have not been established. Although there are no generally accepted criteria for the diagnosis of cases of CFS, an operational concept is used by the medical community. There is no specific treat ment, and manifestations of the syndrome are treated symptomatically. CFS is characterized by the presence of persistent unexplained fatigue and by the chronicity of other symptoms. The most prevalent symptoms include episodes of low-grade fever, myalgias, headache, painful lymph nodes, and problems with memory and concentration. These symptoms fluctuate in frequency and severity and may be seen to continue over a period of many months. Physical examination may be within normal limits. Individual cases must be adjudicated on the basis of the totality of the evidence, including the clinical course from the onset of the illness, symptoms, signs, and laboratory findings. Consideration should be given to onset duration, severity and residual functional capacity following the sequential evaluation process. POMS § DI 24575.005 (1993). The ALJ’s failure to acknowledge the POMS guidelines may be emblematic of the reluctance to acknowledge CFS that appears to underlie his decision. Y. Conclusion For the reasons described herein, we hold that the ALJ’s decision that Claimant is capable of performing full-time light work and returning to her past work as a payroll clerk is not supported by substantial evidence. After three and a half years of treatment and referral to a series of specialists, Claimant’s treating physician found her to be disabled. An examining physician hired by Claimant’s insurance carrier also determined that she was disabled. The ALJ’s finding that Claimant was not disabled was premised almost exclusively on reports by two Social Security consultative examiners hired in connection with Claimant’s Social Security disability claim. Dr. Wood’s conclusion that Claimant was not disabled was based exclusively on an evaluation of orthopedic factors such as reflexes, grip strength, and ability to sit, stand and walk. Although Dr. Wood’s report noted that Claimant manifested “extreme lethargy,” the potential"
},
{
"docid": "23093567",
"title": "",
"text": "time that passed harmful to claimant’s case. Diagnosing CFS is not sport for the short-winded. “[Bjecause chronic fatigue syndrome is diagnosed partially through a process of elimination, an extended medical history of ‘nothing-wrong’ diagnoses is not unusual for a patient who is ultimately found to be suffering from the disease.” Sisco, 10 F.3d at 745. The absence of definitive diagnostic tests, see POMS, supra; see also Sisco, 10 F.3d at 744, makes it plain that the failure of some doctors to state conclusive diagnoses does not constitute substantial evidence to support a finding that claimant did not suffer from the syndrome. See Sisco, 10 F.3d at 745 (findings of physicians who did not rule out CFS, but “merely expressed an inability to discover an adequate physical explanation for [claimant’s] symptoms,” do not constitute substantial evidence to rebut other physicians’ diagnoses of CFS). We will not paint the lily. It is common ground that an ALJ is not free to substitute his own judgment for uneontroverted medical opinion. See, e.g., Rosado v. Secretary of HHS, 807 F.2d 292, 293-94 (1st Cir.1986) (per curiam). In this case, uniform medical opinion requires a finding that claimant suffers from CFS. The Functional Significance of Claimant’s Fatigue Because the medical evidence bound the Secretary to find that claimant does have CFS, the Secretary had no choice but to conclude that the claimant suffers from the symptoms usually associated with CFS, unless there was substantial evidence in the record to support a finding that claimant did not endure a particular symptom or symptoms. Chief among these symptoms, of course, is “persistent unexplained fatigue.” POMS § DI 24575.005 (1993). The record does not contain any meaningful evidence to support a finding that claimant did not suffer from a significant level of fatigue on a regular basis. Leaving to one side Dr. Perl and Dr. Hillier (in his earlier reports) — both of whom confined themselves to discussing claimant’s back condition — all the other examining physicians’ reports, over a period of more than 18 months, consistently noted (and credited) claimant’s complaints of persistent fatigue. The record also"
},
{
"docid": "22649315",
"title": "",
"text": "render medical, clinical opinions, or they may render opinions on the ultimate issue of disability—the claimant’s ability to perform work. As we stated in Matthews v. Shalala, 10 F.3d 678 (9th Cir.1993), “ ‘[t]he administrative law judge is not bound by the uncontroverted opinions of the claimant’s physicians on the ultimate issue of disability, but he cannot reject them without presenting clear and convincing reasons for doing so.’” Id. at 680 (quoting Montijo v. Secretary of Health & Human Servs., 729 F.2d 599, 601 (9th Cir.1984)). See also Lester, 81 F.3d at 830; Embrey, 849 F.2d at 422. A treating physician’s opinion on disability, even if controverted, can be rejected only with specific and legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d at 830. In sum, reasons for rejecting a treating doctor’s credible opinion on disability are comparable to those required for rejecting a treating doctor’s medical opinion. In the present case, the ALJ, writing in the third person, provided the following rationale for rejecting the opinions of Dr. Jacobson and Dr. Charney: The consultative examinations of Drs. Wood and Moseley, which the Administrative Law Judge found to be objective, found the claimant capable of work. The Administrative Law Judge does not credit the assessments of Dr. Jacobson or Dr. Charney. These conflict with the more objective assessments in the consultative examinations of Drs. Moseley and Wood and are based on the subjective complaints of the claimant who was found not very credible. We conclude that the ALJ’s rejection of the opinions of Dr. Jacobson and Dr. Char-ney on the premise that they were based on the subjective complaints of the claimant is ill-suited to this CFS case. The ALJ’s reasoning runs counter to the CDC’s published framework for evaluating and diagnosing CFS. Chronic fatigue is defined as “self-reported persistent or relapsing fatigue lasting six or more consecutive months.” Centers for Disease Control, The Chronic Fatigue Syndrome: A Comprehensive Approach to its Definition and Study, 121 Annals of Internal Medicine 954 (1994) (emphasis added). Although CFS is accompanied by symptoms such as body aches, low-grade fevers,"
},
{
"docid": "22086362",
"title": "",
"text": "functional capacity, despite severe impairments, to perform work in the economy. Thus, the district court decision upholding the determination of the ALJ that Buxton is not disabled within the meaning of the Social Security Act is AFFIRMED. . Chronic Fatigue Syndrome (“CFS”) is recognized by the Center for Disease Control (\"CDC”) as a disease. It is diagnosed mainly through a process of elimination, when a physician is unable medically to pinpoint the cause(s) of a patient's symptoms (such as fatigue, weakness, pain, etc.). Chemical Sensitivity Syndrome (''CSS”) is apparently not currently recognized by the CDC as a disease. The working definition in this case is basically allergic reactions to various chemicals which occur with some frequency in our everyday lives. Depression is a mental disorder found in the Affective Disorders section of the Listing of Impairments at 12.04. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 (12.04). Somatoform Disorder is a mental disorder found in the Listing of Impairments at 12.07, and is characterized by \"physical symptoms for which there are no demonstrable organic findings or known physiological mechanisms.” These physical symptoms may cause the individual \"to take medicine frequently, see a physician often and alter life patterns significantly.” The individual may have an \"[unrealistic interpretation of physical signs or sensations associated with the preoccupation or belief that one has a serious disease or injury;” and may show “[mjarked restriction of activities of daily Iiving[,] [mjarked difficulties in maintaining social functioning[,] [djefi-ciencies of concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere)[,j or [rjepeated episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behavior).” See 20 C.F.R. Pt. 404, Subpt. P, App. 1 (12.07). . There is an interviewer/reviewer signature on the last page of the Disability Report which may indicate that these answers were transcribed, rather than being Buxton's handwritten answers. However, either way, they can clearly be attributed to her. . See"
},
{
"docid": "11220488",
"title": "",
"text": "the ALJ discredited plaintiffs subjective complaints of pain because “no physician has ever suggested that she suffers from a chronic fatigue syndrome.” (T. 23). While the ALJ did not have Dr. Lanham’s opinion when she issued her decision, her findings are nevertheless erroneous. For one thing, plaintiffs condition was repeatedly diagnosed by her doctors as “fibromyalgia” which, according to the professional guidelines cited above, is not inconsistent with a diagnosis of CFS. See Fudka, et al., The Chronic Fatigue Syndrome, supra at 956. In addition, the record contains several medical reports reflecting plaintiffs long-term complaints of extreme fatigue, muscle and joint pain, concentration problems, and other symptoms consistent with a diagnosis or classification of CFS (T. 174, 177, 180-81, 186, 189, 194-95, 274, 277, 283, 285-86). Therefore, when presented with documented allegations of symptoms which are “entirely consistent with the symptomology” for evaluating CFS, Williams v. Shalala, supra, the Secretary cannot rely on the ALJ’s rejection of the claimant’s testimony based on the mere absence of objective evidence. Instead, the Secretary’s decision in such cases should reflect a recognition of the increased significance to be given the claimant’s credibility in assessing residual functional capacity. Reed v. Secretary of Health and Human Services, supra, 804 F.Supp. at 918. Here, the ALJ found plaintiffs testimony regarding her subjective complaints of pain to “greatly exaggerated and totally self-serving” (T. 23). According to the ALJ, there was no objective medical evidence to support the limitations that plaintiff complained of (Id.). Specifically, the ALJ found that despite her pain and fatigue, plaintiff continued to work, attend school and obtain good grades, socialize for the entire summer, and clean and cook for herself (T. 21,23). This conclusion was contrary to substantial evidence. First, as discussed above, plaintiff’s subjective complaints were in fact supported by competent medical evidence. Second, the ALJ grossly miseharacterized the record in finding that plaintiff has the functional capacity to perform all of these exertional activities on a daily or regular basis (T. 23). To the contrary, plaintiff testified that she last worked in August, 1989, when she first applied for disability (see"
},
{
"docid": "9791549",
"title": "",
"text": "of a complex of variable signs and symptoms which may vary in duration and severity. The etiology and pathology of the disorder have not been established. Although there are no generally accepted criteria for the diagnosis of cases of CFS, an operational concept is used by the medical community. There is no specific treatment, and manifestations of the syndrome are treated symptomatically. CFS is characterized by the presence of persistent unexplained fatigue and by the chronicity of other symptoms. The most prevalent symptoms include episodes of low-grade fever, myalgias, headache, painful lymph nodes, and problems with memory and concentration. These symptoms fluctuate in frequency and severity and may be seen to continue over a period of many months. Physical examination may be within normal limits. Individual cases must be adjudicated on the basis of the totality of evidence, including the clinical course from onset of the illness, symptoms, signs, and laboratory findings. Consideration should be given to onset, duration, severity and residual functional capacity following the sequential evaluation process. Rose v. Shalala, 34 F.3d 13, 16 (1st Cir.1994), citing POMS § DI 24575.005 (1993). “[Because the methods for diagnosing chronic fatigue syndrome are limited, the credibility of the claimant’s testimony regarding [his] symptoms takes on ‘substantially increased’ significance in the ALJ’s evaluation of the evidence.” Fragale v. Chater, 916 F.Supp. 249, 254 (W.D.N.Y.1996) (citation omitted). Moreover, “[chronic fatigue syndrome] is recognized by the Social Security Administration as a disease which, while not specifically addressed in the Listings, may produce symptoms which significantly impair [a] claimant’s ability to perform even sedentary work ...” Id. at 253-54 (citations omitted). In evaluating a plaintiffs testimony the Eleventh Circuit has held that the Commissioner must articulate specific and adequate reasons for rejecting a plaintiffs subjective complaints of pain. Allen v. Sullivan, 880 F.2d 1200, 1203 (11th Cir.1989); Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir.1988). Furthermore, the reasons given by the Commissioner for refusing to credit a plaintiffs subjective pain testimony must be supported by substantial evidence. Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir.1987). In evaluating plaintiffs credibility, the ALJ noted"
},
{
"docid": "6632343",
"title": "",
"text": "definition of CFS requires the concurrence of 4 or more of the following symptoms, all of which must have persisted or recurred during 6 or more consecutive months of illness and must not have pre-dated the fatigue: self-reported impairment in short-term memory or concentration severe enough to cause substantial reduction in previous levels of occupational, educational, social, or personal activities; sore throat; tender cervical or axillary lymph nodes; muscle pain; multi-joint pain without joint swelling or redness; headaches of a new type, pattern or severity; unrefreshing sleep; and postexertional malaise lasting more than 24 hours. SSR 99-2p, 1999 WL 271569, *1-2 (S.S.A.) The ruling also states that “CFS has been diagnosed in children, particularly adolescents, as well as in adults.” Id. at *1. An individual with CFS can have a wide range of other symptoms including sleep disturbances and depression. Id. at *2. In this case, the ALJ found that Plaintiff had a medically determinable impairment of chronic fatigue syndrome. (Admin. R. at 17.) SSR 99-2p provides that claims involving chronic fatigue syndrome are adjudicated under the same sequential evaluation process as any other impairment. 1999 WL 271569 at *4. The ruling also instructs that conflicting evidence in the medical record is not unusual in cases of CFS due to the complicated diagnostic process involved. Id. at *7. The ruling states that clarification of conflicts in the evidence should be sought from the individual’s treating physician or other medical source. Id. Plaintiff was evaluated and treated by a chronic fatigue specialist, Dr. Karen Vrchota, after her insured status expired, but the ALJ declined to consider Dr. Vrchota’s opinion and did not discuss Dr. Vrchota’s treatment records. “Evidence of disability subsequent to the expiration of one’s insured status can be relevant to elucidate a medical condition during the time for which benefits might be awarded.” Pyland v. Apfel, 149 F.3d 873, 877 (8th Cir.1998). Shortly before Plaintiffs insurance period expired, Dr. Bateman recommended that Plaintiff see a chronic fatigue specialist because he could not find a physiological explanation for Plaintiffs chronic fatigue. (Admin. R. at 325.) Plaintiff had an extensive evaluation"
},
{
"docid": "22086361",
"title": "",
"text": "standard, supra. What the ALJ concluded, of course, was that the medical evidence available, although supporting findings of impairments, did not support, under the second prong of Duncan, the limitations Buxton allegedly suffered. That finding is entitled to deference. We note, in passing, that this case is not like most other CFS cases, in that Buxton here is not arguing that the ALJ failed to consider her exertional limitations, such as her fatigue, etc. This distinguishes this case, for example, from Cohen, supra, and the First and Ninth Circuit opinions. Those cases are further distinguishable, however, on the basis of the treating physician testimony, because here,'we do not have anything as concrete and unequivocal as the claimants in those cases had regarding the nature of their disabilities and thus, their limitations. III. CONCLUSION The ALJ had the enormous task of making sense of the record, reconciling conflicting medical opinions and evidence, and weighing the credibility of Buxton’s subjective complaints. There is substantial evidence in the record to support the decision that Buxton retained the residual functional capacity, despite severe impairments, to perform work in the economy. Thus, the district court decision upholding the determination of the ALJ that Buxton is not disabled within the meaning of the Social Security Act is AFFIRMED. . Chronic Fatigue Syndrome (“CFS”) is recognized by the Center for Disease Control (\"CDC”) as a disease. It is diagnosed mainly through a process of elimination, when a physician is unable medically to pinpoint the cause(s) of a patient's symptoms (such as fatigue, weakness, pain, etc.). Chemical Sensitivity Syndrome (''CSS”) is apparently not currently recognized by the CDC as a disease. The working definition in this case is basically allergic reactions to various chemicals which occur with some frequency in our everyday lives. Depression is a mental disorder found in the Affective Disorders section of the Listing of Impairments at 12.04. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 (12.04). Somatoform Disorder is a mental disorder found in the Listing of Impairments at 12.07, and is characterized by \"physical symptoms for which there are no demonstrable organic"
},
{
"docid": "6632342",
"title": "",
"text": "she can perform work, because the ALJ relied on the vocational expert’s testimony that was based on a faulty hypothetical question. A. APPEALS COUNCIL’S REMAND ORDER On remand, the Appeals Council ordered the ALJ to address Social Securi ty Ruling 99-2p (“SSR”), which discusses how to evaluate cases involving chronic fatigue syndrome (“CFS”). (Admin. R. at 63.) Plaintiff asserts that the ALJ failed to do so. Defendant contends that although the ALJ did not specifically cite SSR 99-2p, the ALJ followed the directives of SSR 99-2p in her evaluation. Social Security Ruling 99-2p describes the CDC definition of chronic fatigue syndrome as follows: Under the CDC definition, the hallmark of CFS is the presence of clinically evaluated, persistent or relapsing chronic fatigue that is of new or definite onset (i.e., has not been lifelong), cannot be explained by another physical or mental disorder, is not the result of ongoing exertion, is not substantially alleviated by rest, and results in substantial reduction in previous levels of occupational, educational, social, or personal activities. Additionally, the current CDC definition of CFS requires the concurrence of 4 or more of the following symptoms, all of which must have persisted or recurred during 6 or more consecutive months of illness and must not have pre-dated the fatigue: self-reported impairment in short-term memory or concentration severe enough to cause substantial reduction in previous levels of occupational, educational, social, or personal activities; sore throat; tender cervical or axillary lymph nodes; muscle pain; multi-joint pain without joint swelling or redness; headaches of a new type, pattern or severity; unrefreshing sleep; and postexertional malaise lasting more than 24 hours. SSR 99-2p, 1999 WL 271569, *1-2 (S.S.A.) The ruling also states that “CFS has been diagnosed in children, particularly adolescents, as well as in adults.” Id. at *1. An individual with CFS can have a wide range of other symptoms including sleep disturbances and depression. Id. at *2. In this case, the ALJ found that Plaintiff had a medically determinable impairment of chronic fatigue syndrome. (Admin. R. at 17.) SSR 99-2p provides that claims involving chronic fatigue syndrome are adjudicated"
},
{
"docid": "22086354",
"title": "",
"text": "2000 WL 1846220 (10th Cir. Dec. 18, 2000) (unpublished), the Tenth Circuit analyzed a claim of disability from the effects of chronic fatigue syndrome. That court found, however, that there was substantial evidence in the record to support the ALJ’s determination that the claimant retained the residual functional capacity to perform work in the economy. Id. at *4-5. Specifically, there were “numerous medical assessments of [claimant’s] physical ability to work as well as assessments of her mental ability to work.” Id. at *4. The only evidence to the contrary was a physician’s report that the claimant had stated that she was “physically too fatigued and in too much pain to work.” Id. The Tenth Circuit refused to reweigh the evidence, and affirmed the decision to deny the claimant disability benefits. Id. at *4-5. The First Circuit also recently dealt with a chronic fatigue syndrome disability claim. In Abdus-Sabur v. Callahan, No. 98-2242,1999 WL 551133 (1st Cir. July 27, 1999) (unpublished), the claimant had been diagnosed with CFS and two of her physicians had “indicated that her physical capacities [were] quite limited.” Id. at *1. However, a non-examining physician testified before the ALJ that the claimant had failed to meeting the criteria for CFS, and was capable of performing light work activity. Id. at *2. The ALJ relied on the non-examining physician’s opinion (which the appellate court noted was probably based on an outdated definition of CFS), and did not credit the treating physicians’ opinions. Thus, the First Circuit found “under the peculiar circumstances of this case” that there was insufficient evidence to support the ALJ’s decision, and ordered a remand. Id. at *2-4. The Ninth Circuit has also recently decided a claim for disability based on chron ic fatigue syndrome. In Reddick v. Cha-ter, 157 F.3d 715, 719-20 (9th Cir.1998), the claimant was diagnosed with CFS punctuated by “severe fatigue” and “extreme lethargy.” Both of her treating physicians had unequivocally stated that she was disabled due to her fatigue. Id. The ALJ relied on evidence of the claimant’s activity level to find her subjective complaints about her limitations not credible,"
},
{
"docid": "22649333",
"title": "",
"text": "1456, 1463 (M.D.Fla.1996) (ruling that a reversal was required where the ALJ failed to apply standards appropriate to CFS); Fragale v. Chater, 916 F.Supp. 249, 254 (W.D.N.Y.1996)(\"CFS ... may produce symptoms which 'significantly impair [a] claimant's ability to perform even sedentary work ....\"’) (quoting Rose v. Shalala, 34 F.3d 13, 17 (1st Cir.1994)); Williams v. Shalala, 1995 WL 328487, at *6 (W.D.N.Y. May 19, 1995) (holding that a remand was required where the ALJ's decision \"reflects an analysis inconsistent with the appropriate framework for assessing disability claims premised on CFS.\"); Irwin v. Shalala, 840 F.Supp. 751, 770 (D.Or.1993) (holding that a reversal was required where the ALJ discredited testimony of CFS claimant and doctors); Powell v. Chater, 959 F.Supp. 1238, 1245 (C.D.Cal.1997) (ruling that a remand was required where the ALJ’s perceived inconsistencies in the record were \"minimal at best.”). . Dr. Ng commented, \"[a]fter reviewing the medical records of Mrs. Reddick and performing the history and physical on February 4, 1992, I have to agree with Dr. Charney that she does meet the CDC criteria for the diagnosis of chronic fatigue syndrome.\" He also stated, \"[incidentally I think she should also be seen by a psychiatrist to see whether there is any underlying psychological disorder. However, this would not change the fact that she still is disabled, even if her symptomology is secondary to a psychiatric disorder.” . Dorland’s Medical Dictionary outlines some of the symptoms commonly associated with CFS. The dictionary defines chronic fatigue syndrome as a \"persistent debilitating fatigue of recent onset, with reduction of physical activity to less than half of usual, accompanied by some combination of muscle weakness, sore throat, mild fever, tender lymph nodes, headaches, and de pression, with the symptoms not attributable to any other known causes.” Dorland’s Illustrated Medical Dictionary 1627 (28th ed.1994). . In Embrey we rejected the ALJ’s conclusoiy statements rejecting the treating doctor’s opinion on disability: \"Here, the ALJ does not give sufficiently specific reasons for rejecting the conclusion of [Embrey’s treating orthopedist] that Em-brey is 'permanently 'disabled_’ Nor does the ALJ explain why he disagrees with Dr. Baker’s"
},
{
"docid": "11220487",
"title": "",
"text": "the ALJ’s rejection of the plaintiffs testimony should have been accompanied by a more detailed explanation or analysis of the extent to which her fatigue and pain restricted her residual functional capacity. Instead, the ALJ’s decision reflected a “blind reliance on a lack of objective findings....” Id. (quoting Rose v. Shalala, supra, 34 F.3d at 19); see also Sisco, supra, 10 F.3d at 744 (“[Tjhere is no ‘dipstick’ laboratory test for chronic fatigue syndrome.”). In this case, plaintiff alleged disability due to CFS (see, e.g., T. 93). This claim was also pointed out to the ALJ by plaintiffs testimony at the hearing (T. 49, 54r-55). In addition, Dr. Lanham, a CFS specialist, diagnosed plaintiff as suffering from CFS in his April 7, 1994 letter to the Appeals Council (T. 351-52). However, the Appeals Council rejected this letter ostensibly because it did not state that plaintiff was disabled on or before the hearing date (T. 7-8). The letter did, however, diagnose plaintiff as suffering from CFS for the past six and one-half years (T. 351). Here, the ALJ discredited plaintiffs subjective complaints of pain because “no physician has ever suggested that she suffers from a chronic fatigue syndrome.” (T. 23). While the ALJ did not have Dr. Lanham’s opinion when she issued her decision, her findings are nevertheless erroneous. For one thing, plaintiffs condition was repeatedly diagnosed by her doctors as “fibromyalgia” which, according to the professional guidelines cited above, is not inconsistent with a diagnosis of CFS. See Fudka, et al., The Chronic Fatigue Syndrome, supra at 956. In addition, the record contains several medical reports reflecting plaintiffs long-term complaints of extreme fatigue, muscle and joint pain, concentration problems, and other symptoms consistent with a diagnosis or classification of CFS (T. 174, 177, 180-81, 186, 189, 194-95, 274, 277, 283, 285-86). Therefore, when presented with documented allegations of symptoms which are “entirely consistent with the symptomology” for evaluating CFS, Williams v. Shalala, supra, the Secretary cannot rely on the ALJ’s rejection of the claimant’s testimony based on the mere absence of objective evidence. Instead, the Secretary’s decision in such cases"
},
{
"docid": "23244030",
"title": "",
"text": "CFS at that time. In assessing Vega’s RFC, it is clear to us that the ALJ did not properly consider the diagnosis of CFS or evaluate the effect the CFS symptoms had on Vega’s ability to work. This court has not addressed the nature of CFS and the factors to be considered by the ALJ when evaluating a claim of CFS. Other circuits, however, have remanded cases when the ALJ’s conclusions did not fully account for the nature of CFS and its symptoms. See, e.g, Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir.1998) (concluding that the ALJ’s approach to the materials, testimony, and reports did not fully account for the nature of CFS or its symptoms); Sarchet v. Chater, 78 F.3d 305, 307-09 (7th Cir.1996) (reversing the ALJ because his characterization of the record reflected a misunderstanding of CFS); Rose v. Shalala, 34 F.3d 13, 17-19 (1st Cir.1994) (remanding to the ALJ because evidence compelled finding that claimant suffered from CFS). We agree with the reasoning of our sister circuits, as well as our prior case law, holding that remands are required when an ALJ fails to consider properly a claimant’s condition despite evidence in the record of the diagnosis. See Marbury v. Sullivan, 957 F.2d 837, 839-40 (11th Cir. 1992). This holding applies to a claim of CFS when the claimant submits evidence of a CFS diagnosis. We note that the Social Security Administration recently concluded that there are no specific laboratory findings that are widely accepted as being associated with CFS. According to Social Security Ruling 99-2p, the hallmark symptom of CFS is the presence of clinically evaluated, persistent or relapsing chronic fatigue that is of new or definite onset and cannot be explained by another physical or mental disorder. Moreover, CFS is not the result of ongoing exertion, is not substantially alleviated by rest, and results in substan tial reduction in previous levels of occupational, educational, social, or personal activities. There is no test for CFS. The ALJ appears to have rejected CFS as a diagnosis because there is no definite test or specific laboratory findings"
},
{
"docid": "22086355",
"title": "",
"text": "her physical capacities [were] quite limited.” Id. at *1. However, a non-examining physician testified before the ALJ that the claimant had failed to meeting the criteria for CFS, and was capable of performing light work activity. Id. at *2. The ALJ relied on the non-examining physician’s opinion (which the appellate court noted was probably based on an outdated definition of CFS), and did not credit the treating physicians’ opinions. Thus, the First Circuit found “under the peculiar circumstances of this case” that there was insufficient evidence to support the ALJ’s decision, and ordered a remand. Id. at *2-4. The Ninth Circuit has also recently decided a claim for disability based on chron ic fatigue syndrome. In Reddick v. Cha-ter, 157 F.3d 715, 719-20 (9th Cir.1998), the claimant was diagnosed with CFS punctuated by “severe fatigue” and “extreme lethargy.” Both of her treating physicians had unequivocally stated that she was disabled due to her fatigue. Id. The ALJ relied on evidence of the claimant’s activity level to find her subjective complaints about her limitations not credible, id. at 722, and relied exclusively on two non-examining (consultative) physician’s reports to find that the claimant could return to her past relevant work, id. at 724. The Ninth Circuit found that the ALJ’s decision to deny benefits on these bases was unsupported by the record, because the ALJ failed to give legitimate reasons for discrediting the claimant’s testimony and the opinions of both of her physicians, and failed to consider the impact of claimant’s fatigue on her ability to engage in work. Id. at 722, 725, 729. In 1992, the Sixth Circuit had occasion to decide a social security disability claim based on chronic fatigue syndrome. In Cohen v. Secretary of Health & Human Servs., 964 F.2d 524, 526 (6th Cir.1992), the claimant had been diagnosed with chronic fatigue syndrome, and suffered a panoply of documented maladies. Two of her treating physicians had noted the extremity of the claimant’s afflictions, and expressed doubt as to whether the claimant would be able to work again. Id. at 526. The ALJ found that claimant’s level of"
}
] |
197609 | 1992). Nevertheless, in the instant case, findings of fact and conclusions of law by the Court of Military Review would be most helpful to this Court in performing our function of deciding whether the findings and sentence are correct in law. Art. 67(c), UCMJ, 10 USC § 867(c)(1989). United States v. Bar- an, supra. Moreover, in view of the inadequate or nonresponsive affidavits of defense counsel already filed in this case, the Court of Military Review should order an evidentiary hearing, United States v. DuBay, 17 USCMA 147, 87 CMR 411 (1967), or order additional affidavits, see United States v. Parker, supra, before reaching its findings in this regard. See generally United States v. Smith, 36 MJ 455 (CMA 1993); REDACTED The decision of the United States Army Court of Military Review is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for action in accordance with this opinion. Judges COX, GIERKE, and WISS concur. Defense counsel did not object to admission of the play-therapy evidence which is the subject of Issue II. Therefore, resolution of this evidentiary question requires application of the plain-error doctrine which will be facilitated by the findings of fact with respect to Issue I. See generally United States v. Olano, - U.S. -, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Fisher, 21 MJ 327, 328 (CMA 1986). CRAWFORD, Judge (dissenting): I am | [
{
"docid": "12079416",
"title": "",
"text": "M.J. 154, 162 (C.M.A. (1980). We emphasize that our concern is with the fairness of the court-martial to which appellant was subjected, not the culpability, if any, of the military lawyers involved. See Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). Accordingly, we deem further proceedings at the trial level to be appropriate in accordance with United States v. DuBay, supra. The decision of the United States Navy-Marine Corps Court of Military Review is set aside. The record of trial is returned to the Judge Advocate General of the Navy for submission to an appropriate general court-martial authority. That authority may refer the record to a general court-martial for a limited hearing on the matter in issue or, if he determines in his discretion that further proceedings are impracticable, dismiss the charges and forward an authenticated copy of his dismissal action to this Court. If a general court-martial is convened, the military judge, under the provisions of Article 39(a), UCMJ, 10 U.S.C. § 839(a), will conduct the limited hearing. At the conclusion of the proceedings, he will enter findings of fact and conclusions of law and then return the record and a verbatim transcript of the hearing directly to this Court. United States v. Killebrew, supra at 162. Chief Judge EVERETT and Judge COX concur. . There were three companion cases, United States v. Markowich, Dkt. No. 54,310; United States v. Spurgeon, Dkt. No. 54,228; United States v. Clark, Dkt. No. 54,214. We granted the petitions in these cases. 22 M.J. 338-39. They were guilty pleas and were tried before United States v. Carlson, which was a contested case, and the military judge, after a hearing, dismissed the charges on the basis of Lieutenant Bond's conduct. Carlson is not before this Court for review. . We will dispose of the companion cases in separate orders to be issued when this opinion becomes final. All these cases may be handled in a consolidated hearing."
}
] | [
{
"docid": "12124604",
"title": "",
"text": "find or infer that SPC W was so concerned about preserving her extramarital relationship with SPC M that she would fabricate a rape charge in response to appellant’s spreading the word of his having had sexual intercourse with her. To the extent that the military judge and the Court of Military Review ignored the possible repercussions of this devastating evidence, we conclude that they clearly abused their discretion. See United States v. Chadd, supra; see also Geders v. United States, 425 U.S. 80, 86-87, 96 S.Ct. 1330, 1334, 47 L.Ed.2d 592 (1976) (trial judge’s limitations on cross-examination reviewed for abuse of discretion). The decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered. Judge WISS concurs. . We generally rely on United States v. Chadd, 13 USCMA 438, 32 CMR 438 (1963), for its consideration of the proffered newly discovered evidence in the context of the issues raised in the original trial. We do not suggest that this decision would today constitute a correct application of Mil.R.Evid. 412, Manual for Courts-Martial, United States, 1984. SPC W is married to another soldier and is not married to the appellant. . In accordance with RCM 1102(b)(2), Manual, supra, trial defense counsel requested a session under Article 39(a), Uniform Code of Military Justice, 10 USC § 839(a), based upon newly discovered evidence. During the Article 39(a) session, trial defense counsel specifically requested a rehearing or reopening of the case. The military judge based his authority to grant relief, if deemed necessary, on United States v. Scaff, 29 MJ 60 (CMA 1989). . The legislative history of Article 73, UCMJ, 10 USC § 873, indicates that Congress intended that this codal provision mirror practice in Federal civilian courts. See United States v. Chadd, 13 USCMA at 441-42, 32 CMR at 441-42. A leading drafter of the Code commented as follows on its scope: Mr. LARKIN. I think the newly discovered evidence will be surrounded by the"
},
{
"docid": "12049870",
"title": "",
"text": "the United States Army Court of Military Review is affirmed. Chief Judge SULLIVAN and Judges CRAWFORD, GIERKE, and WISS concur. . See 41 MJ 213, 229 n. * (1994). . The issues presented are: I WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO SECURE VITAL WITNESSES FOR THE DEFENSE, WHEN COUNSEL FAILED TO PROPERLY EXERCISE PEREMPTORY CHALLENGES, WHEN COUNSEL FAILED TO OBJECT TO HIGHLY PREJUDICIAL EVIDENCE, WHEN COUNSEL FAILED TO ADEQUATELY CROSS-EXAMINE WITNESSES, WHEN COUNSEL FAILED TO MAKE A MOTION TO SEVER UNRELATED CHARGES, WHEN COUNSEL FAILED TO SECURE A CRITICAL VIDEO OF A CHILD PSYCHOLOGIST, WHEN THIS VIDEO WAS ULTIMATELY LOST, AND WHEN COUNSEL FAILED TO ADEQUATELY REPRESENT APPELLANT AT SENTENCING. II WHETHER THE UNITED STATES ARMY COURT OF MILITARY REVIEW VIOLATED ITS DISCRETIONARY POWER IN FAILING TO SET ASIDE APPELLANT’S SENTENCE OF 40 YEARS’ CONFINEMENT FOR A NONVIOLENT CRIME, WHEN APPELLANT HAS NO CRIMINAL HISTORY AND HAS AN EXEMPLARY MILITARY RECORD, WHEN APPELLANT'S SENTENCE IS CLEARLY EXCESSIVE AND WHEN THE ARMY COURT OF MILITARY REVIEW AND THE COURT OF MILITARY APPEALS [sic] HAVE ADJUDGED CONSIDERABLY LIGHTER SENTENCES FOR SAME OR SIMILAR CRIMINAL CONDUCT. III WHETHER THE UNITED STATES ARMY COURT OF MILITARY REVIEW ERRED IN DENYING APPELLANT’S REQUEST FOR A DUBAY HEARING. . United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967). . The Court of Military Review stated: Mr. Nolan [the civilian trial defense counsel] was ordered by this Court to provide an affidavit concerning his performance at trial. He deliberately defied a legitimate order of this Court. We have referred his action to The Judge Advocate General of the Army and recommended that Mr. Nolan’s certification to appear before courts-martial under Article 27, UCMJ, be revoked and his state bar licensing authority be notified. 36 MJ 990, 996 (1993). . Appellant did not raise these assertions of having requested civilian defense counsel to produce Shannon, his former military supervisors, and these two experts as witnesses in his post-trial submission to the convening authority or on original appeal to the Court of Military Review. It appears"
},
{
"docid": "12049903",
"title": "",
"text": "returned the case to the Judge Advocate General of the Navy for remand to the Court of Military Review. The remand was “to consider and decide the matter raised by appellant in his request to be represented by military counsel outside the Navy-Marine Corps Appellate Defense Division.” 33 MJ 159. On September 5, 1991, new appellate defense counsel was detailed by order of the Navy-Marine Corps Court of Military Review. On April 20, 1992, the Court of Military Review again affirmed the findings and sentence, this time with one judge filing a concurring opinion. On March 1, 1993, this Court granted review of the following issue: WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW HAS DECIDED APPELLANT’S CASE IN CONFLICT WITH PRECEDENT FROM THIS HONORABLE COURT REGARDING THE FAILURE OF TRIAL DEFENSE COUNSEL TO OFFER APPELLANT’S PERSONAL DECORATIONS EITHER AT TRIAL, OR TO COMMENT UPON THEIR OMISSION FROM THE STAFF JUDGE ADVOCATE’S RECOMMENDATION AND CONVENING AUTHORITY’S ACTION, THEREBY DENYING APPELLANT HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. We also specified review of the following issue: WHETHER THE STAFF JUDGE ADVOCATE COMMITTED PLAIN ERROR BY OMITTING FROM HIS RECOMMENDATION TO THE CONVENING AUTHORITY AWARDS AND DECORATIONS APPELLANT RECEIVED IN VIETNAM. We hold that the staff judge advocate committed plain error by failing to refer to appellant’s awards and decorations for Vietnam service in his recommendation to the convening authority. Art. 60(d), UCMJ, 10 USC § 860(d); RCM 1106(d)(3)(B), Manual for Courts-Martial, United States, 1984. See United States v. Fisher, 21 MJ 327 (CMA 1986). See generally United States v. Olano, — U.S. -, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). At the very beginning of appellant’s court-martial, the following colloquy transpired between the military judge and defense counsel: MJ: Defense counsel, is the accused attired in the appropriate uniform with all awards and decorations to which entitled? DC: Yes, Your Honor. MJ: Thank you. You may be seated. After the military judge accepted appellant’s guilty pleas and announced his findings, defense counsel called one witness and introduced seven exhibits. Defense counsel did not, however, introduce any evidence of appellant’s"
},
{
"docid": "12134000",
"title": "",
"text": "this opinion. Judges COX, GIERKE, and WISS concur. Defense counsel did not object to admission of the play-therapy evidence which is the subject of Issue II. Therefore, resolution of this evidentiary question requires application of the plain-error doctrine which will be facilitated by the findings of fact with respect to Issue I. See generally United States v. Olano, - U.S. -, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Fisher, 21 MJ 327, 328 (CMA 1986). CRAWFORD, Judge (dissenting): I am concerned that the majority opinion unnecessarily remands this case for an irrelevant factual inquiry concerning trial defense counsel’s reason for failing to object to admission of play-therapy evidence used by government witnesses to conclude that the children had been sexually abused. First, the very framing of the inquiry indicates a readily identifiable problem which can be resolved without resort to a factual inquiry. This is simply whether the conclusory experts’ testimony that the children had been abused by a male unlawfully invaded the province of the jury. I believe that in the interests of judicial economy this question of law can be resolved by this Court, without remand, and the plain-error doctrine applied as necessary. Second, the cases cited in support of this factual inquiry are based upon divers and conflicting legal theories, and this could lead to unnecessary confusion. United States v. Gipson, 24 MJ 246 (CMA 1987) (rejected a mechanical application of the test announced in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and held that general acceptance of evidence in the scientific community is merely one factor in determining its probativeness); United States v. Gillespie, 852 F.2d 475, 481 (9th Cir.1988) (applied the Frye test and held that the District court committed reversible error by admitting “expert opinion testimony based on play therapy with anatomically correct dolls” without requiring evidence, to establish scientific reliability); Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830, 836 (1992) (held that, “In addition to expert testimony meeting the tests of relevancy and the Frye standard of admissibility, expert testimony is admitted only when the subject matter is"
},
{
"docid": "13313236",
"title": "",
"text": "866(c)(1994). Thereafter, Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply. . United States v. DuBay, 17 USCMA 147, 37 CMR 411, 1967 WL 4276 (1967). . Article 45, Uniform Code of Military Justice, states: (b) A plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty may be adjudged. . Article 18, UCMJ, states: ... However, a general court-martial of the kind specified in section 816(1)(B) of this title (Article 16(1)(B)) shall not have jurisdiction to try any person for any offense for which the death penalty may be adjudged unless the case has been previously referred to trial as a non-capital case. . We find no merit to this claim. See generally United States v. Gaither, 45 MJ 349, 352 (1996) (abuse-of-discretion standard). . In view of appellant’s unrebutted assertion that no motion for sentence credit based on unlawful pretrial punishment was made at his trial on advice of defense counsel that it could be raised on appeal, we do not find a knowing and intelligent waiver of this issue. See United States v. Combs, 47 MJ 330, 333-34 (1997). . Appellant’s affidavit dated June 1995 clearly indicates that he repeatedly protested his treatment to Senior Chief Jacobs, the senior counsel- or at the Brig. CRAWFORD, Chief Judge (concurring in part and dissenting in part): I agree with the Court’s disposition of Issue II. As to Issue I, consistent with my views in United States v. Huffman, 40 MJ 225, 228 (CMA 1994)(Crawford, J., dissenting in part and concurring in the result), and United States v. Combs, 47 MJ 330, 334 (1997)(Crawford, J., dissenting), I would hold that appellant has waived his claim concerning unlawful pretrial punishment by failing to raise the matter before either the magistrate or the military judge. Even though I would dispose of Issue I by applying waiver, I find that appellant’s failure to complain is “strong evidence” that he was not punished in violation of Article 13. Huffman, supra at 227; see United States v. James, 28 MJ 214 (CMA"
},
{
"docid": "12049113",
"title": "",
"text": "Major Mackey testified that appellant would be exposed to more treatment groups if he had a 10-year sentence versus a 5-year sentence. There was no objection to this testimony. DISCUSSION Appellant alleges as plain error Major Mackey’s testimony that appellant should be institutionalized, citing the following specific provision of United States v. Ohrt, 28 MJ 301, 304-05 (CMA 1989): [A] witness ... should not be allowed to express an opinion whether an accused should be punitively discharged. The question of appropriateness of punishment is one which must be decided by the court martial; it cannot be usurped by a witness. The defense’s failure to object to Major Mackey’s testimony constitutes waiver in the absence of plain error. United States v. Fisher, 21 MJ 327 (CMA 1986). See generally United States v. Olano, — U.S. -, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). See also L. Griffin, Federal Criminal Appeals § 4.3(5)(d) at 4-41 (1992). The Supreme Court indicated in Olano that a conviction should not be overturned under the plain-error doctrine unless there was error; it was plain; and the error affected a substantial right. — U.S. at -, 113 S.Ct. at 1777. Assuming error, Major Mackey’s testimony was not so obvious an error as to constitute plain error. The defense called Mr. Stewart as a recognized expert in child sexual abuse cases. He had examined appellant numerous times. He indicated that any treatment should have as its final goal the reunification of the family. The recommendation for group therapy was not an inadvertent admission of defense evidence. Indeed it was a major portion of defense counsel’s theory concerning sentencing in the case. Defense counsel made no objection to Major Mackey’s testimony. In light of the pretrial agreement for a 20-year ceiling on the sentence, a discussion of institutionalization and the treatment programs at the USDB based on a theoretical 5-year to a 10-year sentence can hardly be said to rise to the level of plain error. The decision of the United States Army Court of Military Review is affirmed. Judges COX, GIERKE, and WISS concur. SULLIVAN, Chief Judge (concurring):"
},
{
"docid": "12049299",
"title": "",
"text": "issue on the basis of the affidavits”). The decision of the United States Army Court of Military Review is affirmed. Judges COX, CRAWFORD, and WISS concur. See 41 MJ 213, 229 n. * (1994). SULLIVAN, Chief Judge (concurring): 26. The question whether affidavits should be ordered from defense counsel with respect to an appellant’s ineffective-assistance-of-counsel claim is now entrusted to the Court of Criminal Appeals. I agree with this holding, provided that the decision of that court on this question is subject to legal review by this Court. See Art. 67, Uniform Code of Military Justice, 10 USC § 867. 27. I also agree that the decision to order a proceeding under United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), after affidavits have been received is now entrusted to the Court of Criminal Appeals. Again, however, review of that decision properly resides in this Court. See United States v. Dykes, 38 MJ 270, 272 (CMA 1993) (Sullivan, C.J.) 28. Finally, I do not read the Opinion of the Court as creating carte blanche authority for the Courts of Criminal Appeals to excuse defense counsel from responding to these claims based on Article 31, UCMJ, 10 USC § 831. The court below said: In summary, we have authority to order trial defense counsel to file affidavits in response to post-trial allegations of ineffectiveness lodged against them in the course of an appeal. As the highest tribunal in the Army, we have a responsibility to ensure that the military criminal justice system functions in a manner that not only protects the rights of the accused but also operates efficiently. It is clear that we may compel trial judges and government officials to comply with our orders when warranted. It would be anomalous if we could not also compel trial defense counsel to comply with reasonable rules of practice when necessary to resolve a material issue in a case. The requirement that trial defense counsel file a rebuttal affidavit where a colorable claim of ineffective assistance of counsel has been made is such a reasonable rule of practice. We acknowledge"
},
{
"docid": "12133998",
"title": "",
"text": "Cf. United States v. Cordes, 33 MJ 462, 467 (CMA 1991); United States v. Elmore, 33 MJ 387, 398 (CMA 1991). Likewise, we note appellant’s testimonial denial of any wrongdoing. And finally, does defense counsel’s post-trial affidavit adequately address appellant’s claim that defense counsel ignored his alibi defense and failed to call a potential key witness? United States v. Parker, 36 MJ 269 (CMA 1993); see United States v. Dupas, 14 MJ 28 (CMA 1982). This Court is not a factfinding body, but our review of the ineffective-assistance-of-counsel claim, as noted above, does entail certain factual findings. The Court of Military Review has not articulated any factual findings justifying its affirmance in this ease, so we are deprived of its unique assistance in this regard. See Art. 66(c), UCMJ, 10 USC § 866(c). We, of course, are aware of our recent holding that a Court of Military Review need not always articulate its reasoning for its decisions, and we are not critical of the summary action of the Court of Military Review in this case. United States v. Clifton, 35 MJ 79 (CMA 1992). Nevertheless, in the instant case, findings of fact and conclusions of law by the Court of Military Review would be most helpful to this Court in performing our function of deciding whether the findings and sentence are correct in law. Art. 67(c), UCMJ, 10 USC § 867(c)(1989). United States v. Bar- an, supra. Moreover, in view of the inadequate or nonresponsive affidavits of defense counsel already filed in this case, the Court of Military Review should order an evidentiary hearing, United States v. DuBay, 17 USCMA 147, 87 CMR 411 (1967), or order additional affidavits, see United States v. Parker, supra, before reaching its findings in this regard. See generally United States v. Smith, 36 MJ 455 (CMA 1993); United States v. Payton, 23 MJ 379 (CMA 1987). The decision of the United States Army Court of Military Review is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for action in accordance with"
},
{
"docid": "17027339",
"title": "",
"text": "would have at least altered the landscape of the trial. Moreover, in general, when an accused has consistently denied guilt, a functional defense counsel should not concede an accused’s guilt during sentencing, not only because this can serve to anger the panel members, but also because defense counsel may be able to argue for reconsideration of the findings before announcement of the sentence. The tenor of civilian defense counsel’s responses to the DuBay judge’s inquiries was such that it was clear the deficiencies in his performance were not due to tactical decisions but, rather, were due to his failure to investigate, prepare, and research. See United States v. Scott, 24 MJ 186 (CMA 1987). As a matter of law, the result of this trial was unreliable. The decision of the United States Army Court of Criminal Appeals is reversed. The findings and sentence are set aside, and the record of trial is returned to the Judge Advocate General of the Army, who may return it to an appropriate convening authority to order a rehearing, or if a rehearing is impractical, to dismiss the charges against appellant. Art. 67(e), UCMJ, 10 USC § 867(e) (1994). Judges CRAWFORD, GIERKE, and EFFRON concur. . The following issues were granted: I WHETHER STAFF SERGEANT WEAN WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL ON THE MERITS BECAUSE DEFENSE COUNSEL FAILED TO INVESTIGATE APPELLANT’S CASE AND ADEQUATELY PRESENT APPELLANT’S DEFENSES AT TRIAL. II WHETHER STAFF SERGEANT WEAN WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL ON THE MERITS BECAUSE DEFENSE COUNSEL'S CLOSING ARGUMENT ON SENTENCING INCLUDED IRRATIONAL ASSERTIONS SUBSTANTIALLY PREJUDICIAL TO STAFF SERGEANT WEAN. III WHETHER THE MILITARY JUDGE ERRED IN ADMITTING THE OPINION TESTIMONY OF THE GOVERNMENT’S EXPERT WITNESSES ABSENT A SHOWING THAT THE UNDERLYING THERAPY TECHNIQUES THEY RELIED UPON IN REACHING THEIR CONCLUSIONS WERE RELIABLE. IV WHETHER THE ARMY COURT DECISION SHOULD BE REVERSED BECAUSE THAT COURT ABUSED ITS DISCRETION BY REJECTING THE FINDINGS OF THE EVIDEN-TIARY HEARING AND THE GOVERNMENT CONCESSION WITHOUT A LEGITIMATE RATIONALE,' AND BY FAILING TO ADDRESS THE ISSUES OF INEFFECTIVE ASSISTANCE OF"
},
{
"docid": "12141865",
"title": "",
"text": "the Supreme Court of the United States in United States v. Olano, — U.S. -, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). This Court’s plain-error standard set out in United States v. Fisher, 21 MJ 327, 328 (CMA 1986), substantively parallels the Olano formulation except in one respect: Even if all three prongs of the standard are met, Olano does not require, but only permits, remedial action by the appellate court. I know of no case in our precedent in which this Court has found that an error was obvious, substantial, and had an unfair prejudicial impact on the accused and, yet, did not afford the accused a remedy. See Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a). Inasmuch as the question whether our steadfast precedent that is reflected in Fisher can (see Art. 59(a)) and should give way to the Olano articulation is not squarely presented and developed by the parties for decision, I decline to make that step. Applying the Fisher test, though, I agree with the majority’s conclusion of no plain error in this case. SULLIVAN, Chief Judge (concurring in the result): Since I concur only in the result reached in the majority opinion, I must write separately to briefly address three issues. First, to the extent that Part I of the opinion suggests that prior consistent statements made after the alleged motive to fabricate are admissible under Mil. R.Evid. 801(d)(1)(B), Manual for Courts-Martial, United States, 1984, 37 MJ at 315-316 n.2, I interpret this to be inconsistent with current military law. See United States v. McCaskey, 30 MJ 188, 192-93 (CMA 1990). A prior consistent statement may be admitted under Mil.R.Evid. 801(d)(1)(B) only if made prior to when the alleged motive to fabricate arose. Id. Second, the failure of defense counsel to object when the Government introduced the prior consistent statements of the informants constitutes “forfeiture” of the error, not “waiver,” 37 MJ at 316. See United States v. Olano, — U.S. -, -, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993)(“Waiver is different from forfeiture. Whereas forfeiture is the failure to make"
},
{
"docid": "12124994",
"title": "",
"text": "case we conclude that defense counsel’s failure to object constituted waiver. However, we must now determine whether trial counsel’s inappropriate argument amounted to plain error which would require reversal of appellant’s conviction despite the absence of objection. C. Plain Error As we stated in United States v. Fisher, 21 MJ 327 (CMA 1986), “The plain error doctrine is invoked to rectify those errors that ‘seriously affect the fairness, integrity or public reputation of judicial proceedings.’ ” Id. at 328. The doctrine is only “to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” Id. at 328-29, quoting United States v. Frady, 456 U.S. at 163 n. 14, 102 S.Ct. at 1592 n. 14. Cf. United States v. Olano, — U.S. -, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We hold there was no plain error. The judge instructed the court members that argument is not evidence. He also carefully instructed them on the defense of innocent ingestion, the presumption of innocence, and the prosecution’s burden of proof. Additionally, the evidence of record weighs heavily in support of the conviction returned by the court members after their deliberations by secret written ballot. The decision of the United States Army Court of Military Review is affirmed. Judges COX, GIERKE, and WISS concur. The new Standard 3-5.8, ABA Standards for Criminal Justice, The Prosecution Function (approved Feb. 3, 1992), provides: (a) In closing argument to the jury, the prosecutor may argue all reasonable inferences from evidence in the record. The prosecutor should not intentionally misstate the evidence or mislead the jury as to the inferences it may draw. (b) The prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant. (c) The prosecutor should not make arguments calculated to appeal to the prejudices of the jury. (d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence. [The underlined language was added. Subparagraph (e) was omitted.] 50"
},
{
"docid": "12049871",
"title": "",
"text": "REVIEW AND THE COURT OF MILITARY APPEALS [sic] HAVE ADJUDGED CONSIDERABLY LIGHTER SENTENCES FOR SAME OR SIMILAR CRIMINAL CONDUCT. III WHETHER THE UNITED STATES ARMY COURT OF MILITARY REVIEW ERRED IN DENYING APPELLANT’S REQUEST FOR A DUBAY HEARING. . United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967). . The Court of Military Review stated: Mr. Nolan [the civilian trial defense counsel] was ordered by this Court to provide an affidavit concerning his performance at trial. He deliberately defied a legitimate order of this Court. We have referred his action to The Judge Advocate General of the Army and recommended that Mr. Nolan’s certification to appear before courts-martial under Article 27, UCMJ, be revoked and his state bar licensing authority be notified. 36 MJ 990, 996 (1993). . Appellant did not raise these assertions of having requested civilian defense counsel to produce Shannon, his former military supervisors, and these two experts as witnesses in his post-trial submission to the convening authority or on original appeal to the Court of Military Review. It appears that the first time these assertions were raised was by means of a petition for reconsideration at the Court of Military Review. . For the same reasons, appellant’s claim that Staci’s younger sister, Shannon, would have meaningfully undercut Staci’s credibility appears remote. . A specification alleging the sodomy depicted on the videotape was originally charged, but the prosecution elected at the outset of trial not to present evidence on it. . One of appellant’s contentions is that trial counsel made an improper and inflammatory argument on sentence and that his defense counsel was ineffective for failing to object to the argument. We have rejected that claim of ineffective assistance. In fairness to appellant, we have considered whether the argument was nevertheless error and, if so, whether it was \"plain error.” See MiI.R.Evid. 103, Manual for Courts-Martial, United States, 1984; United States v. Fisher, 21 MJ 327 (CMA 1986). We conclude that the argument was fair comment upon the evidence and was not designed to arouse or inflame the passion or prejudice of the members. United"
},
{
"docid": "17028448",
"title": "",
"text": "Chief Judge COX delivered the opinion of the Court. Appellant, Sergeant (SGT) James T. Murphy, stands convicted of three specifications of premeditated murder, in violation of Article 118, Uniform Code of Military Justice, 10 USC § 918, and single specifications of larceny, bigamy, and false swearing, in violation of Articles 121 and 134, UCMJ, 10 USC §§ 921 and 934, respectively. He was sentenced by a general court-martial to death. The Court of Military Review (now the Court of Criminal Appeals) affirmed his convictions and sentence to death. 36 MJ 1137 (1993). His appeal is mandated by Article 67(a)(1), UCMJ, 10 USC § 867(a)(l)(1994). Appellant has raised numerous issues in his appeal, many of which are classic appellate issues relating to the trial, the jurisdiction of the court-martial, evidentiary rulings, discovery questions, and the like. However, interspersed among these are numerous collateral attacks on his conviction, primarily based upon his claims of ineffective assistance of counsel. See Appendix for a complete list of the issues raised by appellant. Upon careful consideration of appellant’s claims, we agree that he received ineffective assistance of counsel as to his sentencing case. Accordingly, we set aside the decision of the Court of Military Review and return the record to the Judge Advocate General of the Army for further action consistent with the decretal paragraph of this opinion. Unlike the practice in the United States Courts of Appeals and District Courts, neither the UCMJ nor the Manual for Courts-Martial, United States, 1984, provides procedures for collateral, post-conviction attacks on guilty verdicts. See 28 USC § 2255, et seq. Nevertheless, we have relied upon a variety of procedures to ensure that a military accused’s rights are fully protected. See, e.g., United States v. Henry, 42 MJ 231, 238 (1995) (remanded to Court of Criminal Appeals for consideration of affidavits of respective parties); United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967) (eviden- tiary hearing). In this case, we have elected to consider not only the record of trial, but also numerous affidavits filed subsequent to the trial in order to determine if appellant has"
},
{
"docid": "12049298",
"title": "",
"text": "necessary, we reject Burdine. 25. We also reject the suggestion of trial defense counsel and amicus curiae that evidence on the issue of ineffectiveness of counsel may only be obtained at a factfinding hearing convened pursuant to United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967). A Court of Criminal Appeals has discretion (as a Court of Military Review did) to determine how additional evidence, when required, will be obtained, e.g., by affidavits, interrogatories, or a factfinding hearing. See United States v. Wean, 37 MJ 286, 288 (CMA 1993) (Court of Military Review “should order an evidentiary hearing or order additional affidavits” to resolve issue of ineffective assistance of counsel (citations omitted)); United States v. Dupas, 14 MJ at 32 (defense counsel directed to answer interrogatories); United States v. Perez, 18 USCMA 24, 26, 39 CMR 24, 26 (1968) (hearing required to resolve conflicting affidavits if “the evidence before us does not so compellingly demonstrate an accuracy of recollection by one as opposed to the other ... as to justify determination of the issue on the basis of the affidavits”). The decision of the United States Army Court of Military Review is affirmed. Judges COX, CRAWFORD, and WISS concur. See 41 MJ 213, 229 n. * (1994). SULLIVAN, Chief Judge (concurring): 26. The question whether affidavits should be ordered from defense counsel with respect to an appellant’s ineffective-assistance-of-counsel claim is now entrusted to the Court of Criminal Appeals. I agree with this holding, provided that the decision of that court on this question is subject to legal review by this Court. See Art. 67, Uniform Code of Military Justice, 10 USC § 867. 27. I also agree that the decision to order a proceeding under United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), after affidavits have been received is now entrusted to the Court of Criminal Appeals. Again, however, review of that decision properly resides in this Court. See United States v. Dykes, 38 MJ 270, 272 (CMA 1993) (Sullivan, C.J.) 28. Finally, I do not read the Opinion of the Court as creating carte"
},
{
"docid": "17138554",
"title": "",
"text": "apply. Chief Judge SULLIVAN and Judge COX concur. WISS, Judge (concurring): I concur fully in the opinion and the disposition ordered by the majority. In doing so, however, I want to make clear that I believe that one of the procedural aspects of that disposition potentially raises a number of issues that I expressly reserve for consideration until and unless they become ripe for decision. I Part of our mandate today contemplates the contingency that the convening authority orders a limited factfinding hearing under United States DuBay, 17 USCMA 147, 37 CMR 411 (1967), and that the military judge conducting that hearing finds no multiple representation or that the presumption of a conflict of interest was rebutted. In that eventuality, we direct that “the record will be returned to the Judge Advocate General of the Air Force for submission to the Court of Military Review for further review under Article 66, UCMJ, 10 USC § 866. Thereafter, Article 67 ... shall apply.” 36 MJ at 457-58. In the course of utilizing the device first articulated in DuBay, see Art. 39(a), Uniform Code of Military Justice, 10 USC § 839(a), this Court sometimes has followed the procedure provided by the majority here. See, e.g., United States v. Lonetree, 35 MJ 396, 414 (CMA 1992), cert. denied, — U.S.-, 113 S.Ct. 1813, 123 L.Ed.2d 444 (1993). Indeed, in DuBay itself the Court ordered that, in essence, if the facts found and the legal conclusions reached were adverse to the accused, then the case should perk back up the judicial chain of review, citing Article 66 (although I do note that the decretal provision in that case also ordered that the law officer, now the military judge, first, would “return the record to the convening authority” for review under Articles 61 and 64, UCMJ, 10 USC §§ 861 and 864, respectively, before the case would be submitted to the Board of Review, now the Court of Military Review). 17 USCMA at 149, 37 CMR at 413. On the other hand, this Court has sometimes ordered that the case be returned directly to this"
},
{
"docid": "17027342",
"title": "",
"text": "at any time before announcement of the sentence. RCM 924(a), Manual for Courts-Martial, United States (1994 ed.). Currently, however, only the military judge is allowed to reconsider findings before sentence is announced. Members may only reconsider findings up to the point when findings are announced. RCM 924(a), Manual, supra (1995 ed.); see Drafters’ Analysis of RCM 924, Manual, supra (1995 ed.) at A21-66. SULLIVAN, Judge (concurring): I concur. See United States v. Scott, 24 MJ 186, 193-94 (CMA 1987) (Sullivan, J., concurring in part and dissenting in part). APPENDIX__A_ UNITED STATES ARMY COURT OF MILITARY REVIEW Before GRAVELLE, JOHNSTON, and BAKER Appellate Military Judges UNITED STATES, Appellee v. Staff Sergeant STEVEN A. WEAN, [ XXX-XX-XXXX ], United States Array, Appellant ) ) ) ) ) ) ) ACMR 9002749 ORDER WHEREAS the United States Court of Military Appeals returned the record of trial in the case of United States v. Wean, 37 M.J. 286 (C.M.A. 1993) to The Judge Advocate General for remand to the Army Court of Military Review; and, WHEREAS the United States Court of Military Appeals requires answers to certain factual questions that were not clear from the record of trial; and, WHEREAS neither the appellate defense counsel, appellate government counsel, nor Mr. Stanley Evans (the civilian trial defense counsel) have been able to provide this court with sufficient information necessary to resolve the questions of fact to which the Court of Military Appeals requires answers. NOW THEREFORE, IT IS ORDERED: That the record of trial be returned to The Judge Advocate General for such action as is required to conduct a limited hearing pursuant to United States v. Dubay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967). At the hearing the military judge will receive all available evidence in order to make specific findings of fact concerning, but not limited to, the following issues: 1. What were the. reasons that defense counsel failed to object to admission of'\"play therapy\" evidence used by government witnesses in this case to conclude that a child had been sexually abused? 2. What were the reasons that defense counsel failed to request"
},
{
"docid": "23489554",
"title": "",
"text": "newly discovered evidence or fraud on the court.” Art. 73, UCMJ, 10 USC § 873. In United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), this Court was confronted with numerous claims of command influence at Fort Leonard Wood, Missouri. The Judge Advocate General of the Army certified to this Court the question of how to resolve these claims. Art. 67(b)(2), UCMJ, 10 USC § 867(b)(2) (1956). This Court adopted a procedure for a hearing to be held to take evidence and enter findings of fact and conclusions of law. Id. at 149, 37 CMR at 413. This “DuBay Hearing ” has also proved to be a useful tool in determining whether counsel have been ineffective. See United States v. Scott, 18 M.J. 629 (NMCMR 1984), rev’d, 24 M.J. 186 (CMA 1987). In these cases we are faced with three basic questions: 1. Are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions in the defense of the case? 2. If they are true, did the level of advocacy “fall[ ] measurably below the performance ... [ordinarily expected] of fallible lawyers”? United States v. DiCupe, 21 MJ 440, 442 (CMA), cert. denied, 479 U.S. 826, 107 S.Ct. 101, 93 L.Ed.2d 52 (1986). 3. If ineffective assistance of counsel is found to exist, “is ... there ... a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt?” United States v. Scott, 24 M.J. 186, 189 (CMA 1987), quoting Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct.2052, 2069, 80 L.Ed.2d 674 (1984). United States v. McGillis, supra at 462. Turning to the instant case, based upon the affidavits, the testimony of Hunter at his trial, and the entire record of this trial, we find no necessity to order further proceedings. Appellant’s claims that his lawyer would not explore Hunter’s testimony, or even a substitute therefor if he were unwilling to testify, are undisputed. The reason given by defense counsel — “It was my belief at the time that these facts would not have"
},
{
"docid": "1078320",
"title": "",
"text": "attack on a pretrial hearing to determine the voluntariness of a confession). See generally Keeney v. Tamayo-Reyes, — U.S. —, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (cause-and-prejudice standard). We do recognize that an appeal to the Courts of Military Review pursuant to Article 66, Uniform Code of Military Justice, 10 USC § 866, or this Court pursuant to Article 67, UCMJ, 10 USC § 867, is not a habeas corpus proceeding. The writ of habeas corpus is available to the military accused and may be filed in the Courts of Military Review or this Court under the All Writs Act, 28 USC § 1651(a). See Noyd v. Bond, 395 U.S. 683, 695 n. 7, 89 S.Ct. 1876, 1883 n. 7, 23 L.Ed.2d 631 (1969); Courtney v. Williams, 1 MJ 267 (CMA 1976); McDaniel v. Stewart, 1 MJ 929 (ACMR 1979), relying on Kelly v. United States, 1 MJ 172 (CMA 1975). COX, Judge (concurring in the result): I agree that a DuBay hearing should be ordered in this case. The footnote to the lead opinion raises an interesting question. Adoption of a procedural rule is the prerogative of the President by virtue of Article 36(a), Uniform Code of Military Justice, 10 USC § 836(a), which provides: Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter. Perhaps the Joint-Service Committee on Military Justice might consider how collateral attacks on courts-martial should be litigated. United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967). GIERKE, Judge, joined by CRAWFORD, Judge (concurring in the result): I agree that an evidentiary hearing is required in this case, but not for the reasons set out in the lead opinion. I"
},
{
"docid": "17138555",
"title": "",
"text": "in DuBay, see Art. 39(a), Uniform Code of Military Justice, 10 USC § 839(a), this Court sometimes has followed the procedure provided by the majority here. See, e.g., United States v. Lonetree, 35 MJ 396, 414 (CMA 1992), cert. denied, — U.S.-, 113 S.Ct. 1813, 123 L.Ed.2d 444 (1993). Indeed, in DuBay itself the Court ordered that, in essence, if the facts found and the legal conclusions reached were adverse to the accused, then the case should perk back up the judicial chain of review, citing Article 66 (although I do note that the decretal provision in that case also ordered that the law officer, now the military judge, first, would “return the record to the convening authority” for review under Articles 61 and 64, UCMJ, 10 USC §§ 861 and 864, respectively, before the case would be submitted to the Board of Review, now the Court of Military Review). 17 USCMA at 149, 37 CMR at 413. On the other hand, this Court has sometimes ordered that the case be returned directly to this Court in the circumstance like that set out earlier. For instance, in United States v. Payton, 23 MJ 379, 382 (CMA 1987), a unanimous Court ordered that, when the limited hearing is concluded, the military judge “will enter findings of fact and conclusions of law and then return the record and a verbatim transcript of the hearing directly to this Court.” Ironically, Payton involved an issue of defense counsel’s loyalty to his client in his representation — an issue not entirely dissimilar to the issue on which we granted review in this case. The Payton decision cited as authority for its disposition the Court’s earlier decision in United States v. Killebrew, 9 MJ 154, 162 (CMA 1980), where the Court similarly kept a string on the post-hearing treatment of the case; and the Court has followed a similar procedure even in more recent cases, see, e.g., United States v. Giambra, 33 MJ 331, 335 (CMA 1991). II It seems to me that a rational argument can be made in favor of the latter option. This"
},
{
"docid": "12133999",
"title": "",
"text": "United States v. Clifton, 35 MJ 79 (CMA 1992). Nevertheless, in the instant case, findings of fact and conclusions of law by the Court of Military Review would be most helpful to this Court in performing our function of deciding whether the findings and sentence are correct in law. Art. 67(c), UCMJ, 10 USC § 867(c)(1989). United States v. Bar- an, supra. Moreover, in view of the inadequate or nonresponsive affidavits of defense counsel already filed in this case, the Court of Military Review should order an evidentiary hearing, United States v. DuBay, 17 USCMA 147, 87 CMR 411 (1967), or order additional affidavits, see United States v. Parker, supra, before reaching its findings in this regard. See generally United States v. Smith, 36 MJ 455 (CMA 1993); United States v. Payton, 23 MJ 379 (CMA 1987). The decision of the United States Army Court of Military Review is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for action in accordance with this opinion. Judges COX, GIERKE, and WISS concur. Defense counsel did not object to admission of the play-therapy evidence which is the subject of Issue II. Therefore, resolution of this evidentiary question requires application of the plain-error doctrine which will be facilitated by the findings of fact with respect to Issue I. See generally United States v. Olano, - U.S. -, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Fisher, 21 MJ 327, 328 (CMA 1986). CRAWFORD, Judge (dissenting): I am concerned that the majority opinion unnecessarily remands this case for an irrelevant factual inquiry concerning trial defense counsel’s reason for failing to object to admission of play-therapy evidence used by government witnesses to conclude that the children had been sexually abused. First, the very framing of the inquiry indicates a readily identifiable problem which can be resolved without resort to a factual inquiry. This is simply whether the conclusory experts’ testimony that the children had been abused by a male unlawfully invaded the province of the jury. I believe that in the"
}
] |
218017 | in” the REDACTED Accordingly, the 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": "22119091",
"title": "",
"text": "an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States ... shall be fined under Title 18, or imprisoned not more than 2 years, or both. 8 U.S.C. § 1326. In the district court’s judgment, the “nature of the offense” description, “[r]e-entry of a deported alien,” so closely tracks the § 1326 title, “[r]eentry of removed aliens,” that it bears no indicia of the district court having made a mistake or oversight. Rather, it appears that the district court intended the “nature of the offense” to refer generally to the title of § 1326. Such a method of reference to § 1326 is not uncommon; in fact, this court has often used the similar term “illegal reentry” in reference to violations of § 1326 generally. See, e.g., United States v. Gunera, 479 F.3d 373, 376 (5th Cir.2007) (“[A]n alien who has previously been denied entry or been deported or removed commits the offense of illegal reentry when the alien thereafter ‘enters, attempts to enter, or is at any time found in, the United States ....’” (emphasis added)); United States v. Vargas-Garcia, 434 F.3d 345, 349 (5th Cir.2005) (“The illegal reentry statute defines Vargas-Garcia’s offense thusly: a removed alien commits illegal reentry when he ‘enters, attempts to enter, or is at any time found in, the United States ....’” (emphasis added)). Thus, it appears that the district court’s judgment uses the term “re-entry of a deported alien” intentionally in reference to § 1326 generally, and such is not a clerical error. Accordingly, we AFFIRM. . As Defendant observes, we have noted that attempted reentry under § 1326 constitutes an offense distinct from either reentry or being found in the United States under § 1326, see United States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir.2000); United States v. Martinez-Espinoza, 299 F.3d 414, 417 (5th Cir. 2002); but such cases, which focus on the distinction between actual entry and attempted entry, are inapposite here. In this case, the differences between actual and attempted entry are not"
}
] | [
{
"docid": "22722479",
"title": "",
"text": "did not raise this argument in the district court, review is limited to plain error. See Calverley, 37 F.3d at 162-64. Slaughter concedes that a two-level reduction in his offense level would not affect the applicable sentencing guideline range. If his offense level were reduced from 46 to 44, his offense level would still be treated as the maximum offense level of 43 pursuant to U.S.S.G. Ch.5, Pt. A, comment, (n.2). Because Slaughter concedes that the correction of this alleged error would not change the applicable guideline sentencing range, we decline to address the merits of this claim. See United States v. Lopez, 923 F.2d 47, 51 (5th Cir.1991). Slaughter argues that his conviction should be reversed because the jury was not required to find the quantity of drugs as an element of each of the charged offenses. Slaughter’s argument is foreclosed by this court’s precedent. See United States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir.2000); United States v. Watch, 7 F.3d 422, 426 (5th Cir.1993). 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": "2104261",
"title": "",
"text": "32 (the level assigned to offenses involving at least one and a half kilograms, but less than five kilograms, of methamphetamine). See § 2Dl.l(c)(4). Therefore, based on adjustments made to Jones’ original base-offense level (two-point enhancement for use of a firearm, and three-point reduction for acceptance of responsibility), his total offense level became 31, with a corresponding sentencing range of 188-235 months. Accordingly, the court erred in determining Amendment 782 did not lower Jones’ sentencing range. In denying the motion, the court relied solely on its calculation of the offense level, and, therefore, did not consider whether the modification was warranted under the § 3553(a) factors, or the nature and seriousness of the danger to the community that may be posed by a reduction in the sentence. See United States v. Larry, 632 F.3d 933, 937 (5th Cir.2011). Accordingly, the court abused its discretion in denying the motion. See id. The order denying the motion to reduce Jones’ sentence pursuant to § 3582(c)(2) is VACATED, and this matter is REMANDED for the court’s reconsideration of the proper calculation of the Guidelines sentencing range in the light of Amendment 782, and also to determine whether the reduction is warranted in the light of the relevant sentencing factors. See 18 U.S.C § 3582(c); U.S.S.G. § 1B1.10, comment. (n.l(B)(i)-(ii)). VACATED and REMANDED. 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": "9732429",
"title": "",
"text": "that caring for the mentally ill or infirm was not the “primary, essential, fundamental authority and purpose” of the HWHF group homes. Brennan, 505 F.2d at 903-04. As the district court aptly noted, “the ‘primary, indispensable requirement’ for admission to either of the HWHF homes is that the child [has] been abused and/or neglected and in need of a safe, residential environment.” That the children often suffer from mental health or behavioral issues is “an incidental, not a primary factor” motivating their admission to HWHF. Id. at 904. None of the employees at HWHF are licensed to provide professional counseling or to diagnose medical, psychological, or psychiatric conditions. All psychological and psychiatric services are outsourced to third-party professionals. HWHF does not accept children with intensive psychiatric needs, and it is not licensed to do so. The employees at HWHF are involved with the children’s treatment teams insofar as they implement professional suggestions ■ on a day to day basis and help provide a safe, therapeutic environment, but they are not medical professionals engaged to treat mental health issues. Anderson has failed to raise an issue of material fact with respect to whether HWHF was “primarily engaged in” the care of the mentally ill. Accordingly, the district court properly concluded that HWHF was not a covered enterprise under FLSA. IV We AFFIRM the judgment of the district court. 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. . Specifically, the DOL auditor referred HWHF to a provision in the DOL Field Oper ations Handbook which provides: Private nonprofit institutions providing care for neglected and dependent children are not covered by the enterprise provisions of the FLSA, provided that such institution is not operated in conjunction with a hospital, covered institution, or school within the meaning of sections 3(r) and 3(s) of the Act. Dept, of Labor, Wage & Hour Div., Field Operations Handbook § 12gl8 (March 31, 2016) (available at https://www.dol.gov/whd/ FOH/FOH_Chl2.pdf). . Similarly, an enterprise is"
},
{
"docid": "5670275",
"title": "",
"text": "reason supported by the record ...”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). hi. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. 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. . The Meyerses voluntarily abandoned their negligence misrepresentation claim."
},
{
"docid": "4720328",
"title": "",
"text": "the record suggest, that Foti threatened to exercise his duties as Attorney General to enforce the automatic stay provision in the PLRA. Therefore, the Eleventh Amendment bars any suit against Foti in his official capacity. The district court properly dismissed Hamilton’s claims against Foti in his official capacity. Hamilton also alleged a Section 1983 claim against Foti in his individual capacity. The district court dismissed this claim because Hamilton failed to allege that Foti was personally involved in the alleged violation of his civil rights. It is unclear whether Hamilton challenges this conclusion on appeal. However, Hamilton’s allegations are that Gegenheimer, not Foti, was the one who made the breach of contract lawsuit subject to the PLRA. He has not alleged that Foti was personally involved. The personal involvement by a defendant “is an essential element of a civil rights cause of action.” Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.1983). The district court did not err in dismissing this claim. The district court’s judgment 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. . Representative of his efforts are the following: State ex rel. Hamilton v. Zaccaria, 442 So.2d 475 (La.1983) (suit against the judge who presided over his murder trial); State ex rel. Hamilton v. Maggio, 464 So.2d 308 (La.1985) (suit against the prison warden); State ex rel. Hamilton v. State, 699 So.2d 393 (La.1997) (seeking supervisory or remedial writ)."
},
{
"docid": "17572751",
"title": "",
"text": "in both actions. As the district court pointed out, it is undisputed that the Meyerses controlled the instant action as well as the dismissed case. RMC.alleges that it is an entity owned by the Meyerses; public records show that the Meyerses are the sole managers or members of RMC; and RMC stipulated that the Meyerses owned RMC and were RMC’s sole members and managers with “full authority to exercise RMC’s powers and bring or defend claims on RMC’s behalf.” R. at 178. To whatever extent RMC has a legitimate interest in the claims and causes of action alleged in the instant action, RMC’s interests in those claims and causes of action were adequately represented by the Meyerses in the previously dismissed case. Thus, the record supports a finding of privity. Because we affirm on the district court’s dismissal of RMC’s suit on grounds of res judicata, we do not need to reach the Rule 9(b) issue. United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir.2009) (“[A court of appeals] may affirm for any reason supported by the record ... ”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). m. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. 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. . The Meyerses voluntarily abandoned"
},
{
"docid": "21604962",
"title": "",
"text": "it in the first instance to the district court and further development of the record. In sum, on remand, the Government is permitted to present additional evidence related to the restitution award for these five victims. See Jones, 616 Fed.Appx. at 729. V. CONCLUSION For the foregoing reasons, we VACATE the restitution order and REMAND the case to the district court for further proceedings consistent with this opinion. The sentence is otherwise 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. . In October 2016, while this appeal was pending, the Government filed an opposed motion to supplement the record on appeal with the letter sent by the victims’ counsel. This court granted the motion. This court also denied a motion for reconsideration filed by Jimenez. . Section 3553(b)(2) provides in full: In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless— (i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described; (ii) the court finds that there exists a mitigating circumstance of a land or to a degree, that— (I) has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, taking ac count of any amendments to such sentencing guidelines or policy statements by Congress; (II) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and (III) should result in a sentence different from that described; or (iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance"
},
{
"docid": "17572752",
"title": "",
"text": "supported by the record ... ”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). m. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. 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. . The Meyerses voluntarily abandoned their negligence misrepresentation claim."
},
{
"docid": "5670274",
"title": "",
"text": "in both actions. As the district court pointed out, it is undisputed that the Meyerses controlled the instant action as well as the dismissed case. RMC alleges that it is an entity owned by the Meyerses; public records show that the Meyerses are the sole managers or members of RMC; and RMC stipulated that the Meyerses owned RMC and were RMC’s sole members and managers with “full authority to exercise RMC’s powers and bring or defend claims on RMC’s behalf.” R. at 178. To whatever extent RMC has a legitimate interest in the claims and causes of action alleged in the instant action, RMC’s interests in those claims and causes of action were adequately represented by the Meyerses in the previously dismissed case. Thus, the record supports a finding of privity. Because we affirm on the district court’s dismissal of RMC’s suit on grounds of res judicata, we do not need to reach the Rule 9(b) issue. United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir.2009) (“[A court of appeals] may affirm for any reason supported by the record ...”). Furthermore, in light of our earlier finding that the claims were appropriately dismissed on res judicata, we pretermit discussion of RMC’s argument that the district court should not have dismissed its claims with prejudice. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (“Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”); see also Wilder Corp. of Del., Inc. v. Rural Cmty. Ins. Servs., 494 Fed.Appx. 487, 490 (5th Cir.2012) (per curiam) (unpublished) (“Because [the party’s] counterclaim is conclusively barred by res judi-cata, dismissal with prejudice was appropriate.”). hi. For the foregoing reasons, we AFFIRM the judgment of the district court dismissing RMC’s claims. 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. . The Meyerses voluntarily abandoned"
},
{
"docid": "2903161",
"title": "",
"text": "of the taser. Accordingly, Anderson has not shown that any error violated his substantial rights. See id. at 289. The medical records do not blatantly contradict Anderson’s account of the police officers’ conduct. The defendants are not entitled to qualified immunity when accepting Anderson’s recitation of the facts. Consequently, summary judgment was not appropriate in this case. REVERSED and REMANDED. 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. . Anderson also sued J.B. McCaleb, the officer who supervised the other officers. The claims against McCaleb were dismissed, and there is no appeal of that ruling. . The magistrate judge — after concluding the medical records contradicted Anderson’s testimony — determined that Anderson had not shown the use of a taser was unreasonable. The magistrate judge reached this conclusion only by considering the use of the taser when the defendants first approached Anderson while he was holding the object they could not identify. Based on our conclusion that Anderson’s testimony is competent summary judgment evidence, the use of a taser in the manner alleged in this case remains at issue on remand."
},
{
"docid": "19332018",
"title": "",
"text": "example, Banda supplied drugs to Michael Fletcher weekly from March 2004 to June 2004 in varying amounts. Banda concedes that a conservative estimate of one ounce per week would equate to one pound of methamphetamine. He also supplied drugs to Fletcher on four or five subsequent occasions in amounts of one to two ounces. Banda was connected to at least two other transactions involving pound quantities, was involved in multiple transactions of lesser amounts, and engaged in bartering his dogs for drugs. The district court is permitted to make reasonable estimates of drug quantities and may make reasonable inferences from the facts. Betancourt, 422 F.3d at 246. In light of this and the wide latitude afforded the district court’s findings, the district court’s conclusion that Banda was involved with at least 1.5 kilograms of methamphetamine was not clearly erroneous based on the record as a whole. See id. Banda also argues that the district court’s determination of facts relevant to determining the guideline range violates his Sixth Amendment rights and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Banda correctly concedes that this argument is fore closed. See United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.2005). 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": "10111813",
"title": "",
"text": "the court abused its discretion by mentioning before the jury Stewart’s dismissed retaliation claim, he fails to show an abuse of discretion, because the court instructed the jury multiple times that it was the sole judge of the facts, and to disregard the court’s statements in arriving at a verdict. Turlington v. Phillips Petroleum Co., 795 F.2d 434, 443 (5th Cir.1986). 4. Stewart contends the court wrongfully precluded him from presenting evidence related to Duncan’s financial misconduct. But, as discussed supra, exclusion of irrelevant evidence does not constitute an abuse of discretion. Pena, 542 F.2d at 294. 5. To the extent Stewart asserts cumulative error warrants reversal, for the reasons- stated above, he fails to show any reversible error. Moreover, even assuming errors, Stewart fails to show they “so fatally infect the trial that they violated [its] fundamental fairness”. United States v. Delgado, 672 F.3d 320, 344 (5th Cir.2012) (quoting United States v. Fields, 483 F.3d 313, 362 (5th Cir.2007)). C. Finally, although Stewart challenges the adverse summary judgment on his discrimination claim against IAM, his contentions turn on IAM’s being his claimed employer. Stewart concedes “District 19 initiated ... the discrimination against Stewart”, and states he named IAM as a defendant “under well-established .law that exposes superficially distinct entities to liability upon a finding that they represent a single, integrated enterprise”. Therefore, because his claims of harmful error at trial fail, as discussed supra, there is no underlying liability to impute to IAM for claimed discrimination. In any event, his employer-liability claim fails, essentially for the reasons stated in the comprehensive and well-reasoned recommendation by the magistrate judge, as adopted by the district court. III. For the foregoing reasons, the judgment 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": "2843175",
"title": "",
"text": "to have evidence tending to show, that the Government refused to file a motion for suspect reasons such as his race or his religion.” Id. The factual discrepancies between the two parties’ accounts do not entitle Brown to an evidentiary hearing. Brown would not be entitled to relief as a matter of law, because he has not alleged the Government’s failure to file the Rule 35(b) motion was the result of an unconstitutional motive. See supra Part III.B. We hold that the district court did not abuse its discretion because, as the district court correctly observed, even “[assuming arguendo that the Government did enter into a subsequent verbal agreement with the defendant, the Court could not compel the Government to file a [R]ule 35(b) motion under the circumstances here.” IV. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s decision. 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. . Although the Government sought to enforce the waiver in the district court, the Government does not seek to enforce it in this Court. Therefore, the waiver is not binding, and this Court may consider the instant appeal. See United States v. Story, 439 F.3d 226, 231 (5th Cir.2006) (\"In the absence of the government's objection to [the appellant’s] appeal based on his appeal waiver, the waiver is not binding because the government has waived the issue.”). . The record is unclear as to Brown's relationship with the woman who made the call. At some points, she is referred to as Brown’s wife, in others, as Brown’s girlfriend. . In its opposition to Brown’s original § 2255 motion, the Government also argued that Brown waived his right to appeal, see supra, and Brown's claim was not cognizable under § 2255. The Government has not pressed these issues on appeal, and so we do not consider them here. See United States v. Griffith, 522 F.3d 607, 610 (5th Cir.2008) (\"It is a well worn principle that the"
},
{
"docid": "17270819",
"title": "",
"text": "470, 475 (5th Cir.1997) (failure to exhaust); Sossamon v. Lone Star State of Texas, 560 F.3d 316, 324 (5th Cir.2009) (mootness). Essentially for the reasons stated by the district court in its well-reasoned 26 February 2008 opinion and detailed 14 November 2008 final judgment, we affirm. Because the Government no longer seeks to impose liability on Looney pursuant to 26 U.S.C. § 6672 and has been ordered to pay Looney $2,607, her § 6672 challenges are moot. Looney’s automatic-stay claims are without merit. Although referred to as “penalty” in the statute, the liability imposed pursuant to 26 U.S.C. § 6672 is, in essence, a tax. See, e.g., Cash v. United States, 961 F.2d 562, 565 (5th Cir.1992) (“Although denoted a penalty in the statute, the liability imposed by § 6672(a) is not penal in nature because it only recovers for the Government the same amount the employer was required to withhold and remit.”). Therefore, the liability imposed pursuant to 26 U.S.C. § 6672 is exempted from the automatic stay pursuant to 11 U.S.C. § 362(b)(9)(D) (“an assessment for any tax”). To the extent Looney’s automatic-stay claim may be construed to be based on 26 U.S.C. § 7433, she failed to exhaust her administrative remedies. See 26 U.S.C. § 7433(d)(1) (exhaustion requirement). Finally, Looney’s claim that the district court’s judgment violated the “separate document” rule pursuant to the Federal Rule of Civil Procedure 58(a) is without merit because, by entering final judgment, the district court properly complied with the rule. 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": "16170293",
"title": "",
"text": "under pre-Burlington Northern jurisprudence. Hunt, 277 F.3d at 769. In addition, the record reflects that a four day work week is an alternative schedule that is sometimes offered as a privilege to DSS employees. It is not a right. DSS treated other workers similarly, switching them from a four to five day work week when they were unable to adequately manage their case loads. This action would not have dissuaded a reasonable worker from making or supporting a charge of discrimination. Accordingly, we agree that Lu-shute has not made out a prima facie case of retaliation under FMLA and the district court’s judgment dismissing her claims on summary judgment was correct. This decision could also be justified on the basis of inadequate briefing by the plaintiff. Lu-shute argues only that issues of fact exist as to the defendant’s motivations for changing her work schedule. She makes the assertion that “Defendant admitted that it considered the time she was off from work on leave pursuant to the FMLA as a reason for taking said action.” However, her argument consists entirely of a legal discussion relating to the mixed motive analysis, which authority the district court also cited. Critically, she did not relate the legal discussion to the facts of this case or provide citations to the record to support her assertion of improper motivation. See Fed. R.App. Proc. 28(a)(9)(A). We need not consider inadequately briefed issues. 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": "12679807",
"title": "",
"text": "as 'it does not “(i) unfairly expose the corporation or the defendants to a multiplicity of actions, (ii) materially prejudice the interests of the creditors of the corporation, or (iii) interfere with a fair distribution of the recovery among all interested parties.” Derouen v. Murray, 604 So.2d 1086, 1091 n. 2 (Miss. 1992) (quoting American Law Institute, Principles of Corporate Governance: Analysis and Recommendations § 7.01(d) (1992)) (internal quotations omitted). After briefing by the parties, the district court determined that because not all members of Equity were parties to the lawsuit, it could expose McLarty to multiple suits and result in inequitable distribution of recovery. The district court thus held that the Derouen exceptions did not apply and dismissed, without prejudice, Dalton’s suit for lack of standing. A careful review, of the record in this case, a full consideration of the parties’ briefs on appeal, and a thorough analysis of the district court’s ruling lead us to conclude that the district court’s judgment was correct. The district court properly determined that Dalton lacked standing under Mississippi law to pursue her direct claim against McLarty. Therefore, we AFFIRM the district court’s decision, essentially for the reasons articulated in its memorandum opinion and order. 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": "8304485",
"title": "",
"text": "that Local 556 applied its established initiation fee policy arbitrarily or unequally. On its face, the Local 556 bylaws broadly require payment of a $100 initiation fee to become a member of the union — the bylaws themselves draw no distinctions between nonmembers who must pay this fee. The only exemptions from this requirement are those covered by the International Constitution, with regard to which Local 556 has no discretion. Thus, even if this Court were to conclude that exempting only certain former members from paying the initiation fee while not exempting others is a breach of the duty of fair representation, Local 556 is not the entity responsible for that breach. Summary judgment in favor of Local 556 was therefore appropriate. III. CONCLUSION • For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in favor of Local 556 on all claims raised by the Plaintiffs-Appellants. 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. . AFNOs are not permitted to attend union meetings or participate in union elections but are still represented by Local 556. AFNOs are not considered union members and pay a fee lower than monthly due payments. . Martin and Starzinger filed an initial complaint on February 17, 2015. Pursuant to Federal Rule of Civil Procedure 15(a)(2), Fisher and Jackson were joined in the suit, and an amended complaint was filed by all four Plaintiff-Appellants on June 1, 2015. All of the Plaintiffs-Appellants claim a violation of the LMRDA, but only Fisher and Jackson claim retaliation and a breach of the duty of fair representation."
},
{
"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": "1590844",
"title": "",
"text": "to establish company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. Cont’l Coffee Prods. v. Cazarez, 937 S.W.2d 444, 451 (Tex.1996). In this case, the district court methodically considered Ferguson’s summary judgment evidence under the Cazarez elements and found she had failed to circumstantially establish a causal link between her workers’ compensation claim and her termination. On appeal, the only evidence Ferguson cites as ignored by the district court is the fact that she was assigned to a different job role following her return to work after her first work-related injury. However, throughout the underlying lawsuit, Ferguson staked her retaliation claim on her second workers’ compensation injury. Ferguson presented her allegations of negative treatment following her first injury for the purpose of establishing pretext in her ADEA claim. The district court’s summary judgment order makes clear that the court fully considered this evidence in that context. 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": "9732430",
"title": "",
"text": "mental health issues. Anderson has failed to raise an issue of material fact with respect to whether HWHF was “primarily engaged in” the care of the mentally ill. Accordingly, the district court properly concluded that HWHF was not a covered enterprise under FLSA. IV We AFFIRM the judgment of the district court. 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. . Specifically, the DOL auditor referred HWHF to a provision in the DOL Field Oper ations Handbook which provides: Private nonprofit institutions providing care for neglected and dependent children are not covered by the enterprise provisions of the FLSA, provided that such institution is not operated in conjunction with a hospital, covered institution, or school within the meaning of sections 3(r) and 3(s) of the Act. Dept, of Labor, Wage & Hour Div., Field Operations Handbook § 12gl8 (March 31, 2016) (available at https://www.dol.gov/whd/ FOH/FOH_Chl2.pdf). . Similarly, an enterprise is \"engaged in commerce or in the production of goods for commerce” if it is \"engaged in the operation of ... an institution primarily engaged in the care of the sick, the aged, or mentally ill or defective who reside on the premises of such an institution,” regardless of the institution’s non-profit status. 29 U.S.C. § 203(s)(l)(B). . Notably, when Anderson was asked during his deposition whether he believed HWHF \"treats the mentally ill,” he replied \"no.” Instead, he agreed that HWHF was \"primarily engaged in helping return abused and abandoned children to a home environment.” . Anderson relies considerably on the guidance provided in the DOL’s Field Operations Handbook which states that an institution would be covered if more than fifty percent of its residents \"have been admitted by a qualified physician, psychiatrist, or psychologist.” Dept, of Labor, Wage & Hour Div., Field Operations Handbook § 12gl2, The Handbook goes on to say, however, that “[dor the purposes of the 50 percent test, the term ‘admitted’ includes evaluations of mental or emotional disturbance by a"
}
] |
125156 | one large or multiple small shareholders of Dynegy would greatly overstate his personal criminal culpability. Because the district court’s approach to the loss calculation did not take into account the impact of extrinsic factors on Dynegy’s stock price decline, Olis is entitled to resentencing on this factor, subject to the principles just discussed. D. Other Sentencing Issues Olis challenges, as duplicative, additional sentencing enhancements for the use of “sophisticated means”, U.S.S.G. § 2B1.1(b)(8)(C), and “special skill”, U.S.S.G. § 3B1.3. This court has held that double-counting is not impermissible unless the guidelines so state. United States v. Calbat, 266 F.3d 358, 363 (5th Cir.2001). These guidelines do not proscribe their joint application. Further, the district court properly cited a similar case, REDACTED which found no impermissible double counting. Olis used his special skills in accounting and tax matters to advance an extremely sophisticated, but fraudulent, scheme. The final 4-level enhancement against Olis was based on there being more than 50 victims of his crime, U.S.S.G. § 2B1.1 (b)(2)(B). The probation office counted as victims nearly all 140,000 employees of UCRS. This is a questionable assessment, as pension plans attempt to balance gains and losses to their beneficiaries, rendering any impact upon UCRS plan members far more attenuated than if they individually owned Dynegy shares. It is, however, inconceivable that fewer than fifty shareholders of Dynegy suffered a market loss from purchases or sales of stock caused by Olis’s fraud. This enhancement may | [
{
"docid": "7908730",
"title": "",
"text": "is produced. Under the new definition, which allows the court to inquire into the actual tax burden, the authority of the court is expanded to accept proof showing a lesser amount of taxes owed. As in Lykes and Ebbole, when a key phrase is defined or redefined by changing the guideline itself, and the effect is to change offense levels, the amendment is substantive. Section 2Tl.l(c)(l)(A) substantively redefined the term “tax loss,” and Judge Mihm was correct when he declined to consider the new definition pursuant to U.S.S.G. § lBl.ll(b)(2). The defendants’ second attack focuses on Judge Mihm’s decision to enhance the defendants’ sentences for use of sophisticated means. The defense claims that the tax fraud scheme was simple, not complex— Minneman did nothing sophisticated by merely depositing money in the trust account. Thus, the court should not have enhanced the sentences under U.S.S.G. § 2T1.1(b)(2) (1991), the “sophisticated means” enhancement for “conduct that is more complex or demonstrates greater intricacy or planning than a routine tax-evasion case.” Id. in commentary. The defense loses this point right out of the gate. Compared to simply not reporting income, the use of multiple corporate names (one officially defunct) and the placement of funds in a trust account both constitute complex efforts to hide income. See, e.g., United States v. Becker, 965 F.2d 383, 390 (7th Cir.1992) (efforts to make income untraceable, such as deposits into an account without a defendant’s name or social security number, constitute sophisticated means). Next, Minneman launches a two-pronged challenge to the propriety of' the court’s enhancement of his sentence for the use of special skill. See U.S.S.G. § 3B1.3. Minneman claims that he did not use his legal education to significantly facilitate the offense and he argues that application of the special skill and the sophisticated means enhancements constituted impermissible double counting of identical conduct. See United States v. Haines, 32 F.3d 290, 293 (7th Cir.1994). The government cpunters the first argument by reminding us that Minne-man thwarted the IRS by claiming attorney-client privilege, using his knowledge of tax law to file returns for MCWT, and using"
}
] | [
{
"docid": "22948864",
"title": "",
"text": "no correlation with losses to actual shareholders who bought or sold based on fraudulent information. Third, the cases rejected defendants’ arguments that attempted to reason away all losses caused by the fraud. Finally, the factual variations among these cases reflect the importance of thorough analyses grounded in economic reality. In this case, the district court, faced with a “cook the books” fraud, overemphasized his discretion as factfinder at the expense of economic analysis. Thus, the court elected to rely solely on the Heil testimony concerning the purchase and sale of UCRS stock as a measure of the loss caused by Olis’s offense. When Heil’s testimony was offered at trial to prove guilt, Olis’s counsel was not placed on notice that the same evidence might later pertain to the guidelines loss calculation. For that reason, other significant extrinsic causes of the UCRS loss were not explored, much less quantified, at trial. UCRS bought most of its Dynegy holdings at the top of the market. As Olis pointed out at sentencing, however, two-thirds of the drop in Dynegy’s price occurred either before the revelation of Project Alpha’s problems or more than a week after the announcement of the restatement of earnings caused by Project Alpha. Taken on the court’s own terms, a substantial portion of the entire loss on the UCRS investment in Dynegy, over $100 million, could not have been caused by Olis’s work on Project Alpha. During sentencing, moreover, Olis offered the expert report of a Rice University expert, Professor Bala Dharan, which explored numerous forces at work on the Dynegy stock price during the relevant periods. The court refused to consider the report, criticizing the expert’s analysis of whether Olis could have “reasonably foreseen” the impact of his conduct on the stock market. As the court observed, the economist was arguably stretching his expertise into an improper legal conclusion, but his statements on this matter are separate from his economic analysis of price and market movements. Professor Dhar-an’s report demonstrates that Dynegy stock declined during the period covering Project Alpha in tandem with the stocks of other publicly traded"
},
{
"docid": "23228193",
"title": "",
"text": "we find no merit in the individual claims we reject the cumulative error claim. See United States v. Stephens, 571 F.3d 401, 412 (5th Cir.2009). . 564 F.3d 750, 752 (5th Cir.2009). . 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). . 517 F.3d 751, 764 (5th Cir.2008). . 555 F.3d 152, 164 (5th Cir.2009). . 93 F.3d 1257, 1269 (5th Cir.1996). . U.S.S.G. § 2B1.1 cmt. n.2(C) (2001). . See U.S.S.G. § 2Bl.l(b)(l)(L) (2001) (providing for a 22-level enhancement for a loss that is more than $20 million but not more than $50 million). The 2001 version of the Sentencing Guidelines was applicable in this case. . See United States v. Olis, 429 F.3d 540, 545-46 (5th Cir.2005) (holding that a defendant convicted of an economic crime is \"responsible at sentencing only to the extent that losses are caused directly by the offense conduct”). . See U.S.S.G. § 2B1.1 cmt. n.2(B) (2001) (providing that the gain resulting from an offense should be used as an alternative measure of loss if there is a loss but it reasonably cannot be determined). . See § 2B 1.1 (b)(1)(F) (providing for a 10-level enhancement when the offense results in a loss of more than $120,000 but not more than $200,000). . 49 F.3d 138, 144 (5th Cir.1995) (“compensation for legal services ... not performed in furtherance of the fraudulent concealment cannot be considered gain to the appellants”) (footnote omitted); cf. Olis, 429 F.3d at 545-46. . Ollison, 555 F.3d at 164; see also United States v. Gupta, 572 F.3d 878, 887 (11th Cir.2009). . 553 F.3d 881, 899 (5th Cir.2008). . Id. at 898 (internal quotation marks and citation omitted). . See also 18 U.S.C. § 3663A(c)(3)(B) (providing that restitution is inapplicable if \"determining complex issues of fact related to the cause or amount of the victim’s losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process’’)."
},
{
"docid": "22948849",
"title": "",
"text": "each in exchange for maximum sentences of five years. Foster testified against Olis at trial. The jury convicted Olis on all counts. The district court sentenced Olis, applying the Sentencing Guidelines as mandatory, to 292 months in prison, three years supervised release, and a $25,000 fine. The offense level was extraordinarily high based on the court’s findings that the fraudulent scheme caused a loss of $105 million to one shareholder, the University of California Retirement System (“UCRS”); that Olis employed “sophisticated means” and a “special skill” to carry out the fraud; and that there were more than fifty victims of the fraud. Olis has appealed. II. SUFFICIENCY OF EVIDENCE Olis contends, almost perfunctorily, that the evidence does not support his conviction. In particular, he disputes the proof that he conspired to conceal two critical features of Project Alpha from Dynegy’s outside auditor Arthur Andersen— the “parent level” hedge and the “tear-up” agreements. This court will not disturb a jury’s verdict unless the record demonstrates that a rational jury could not have found each of the elements of the offense beyond a reasonable doubt. United States v. Dahlstrom, 180 F.3d 677, 684 (5th Cir. 1999). The evidence, and all inferences reasonably drawn from it, must be viewed in the light most favorable to the verdict, regardless whether the conviction is based on direct or circumstantial evidence. Id. Olis asserts that the evidence demonstrated that everyone working on Project Alpha, including Arthur Andersen accountants, knew that the bank owners of ABG Gas were fully hedged against the risk of loss from variable gas prices. Olis’s boss Foster, testified, however, as a star prosecution witness and co-indictee, that he and Olis wrongly agreed to the tear-ups and the parent hedge and hid them from Arthur Andersen. Jim Hecker, an audit partner at Arthur Andersen, testified that he advised Dynegy against tear-ups, and Dynegy subsequently did not reveal this aspect of Project Alpha to him. A reasonable jury, basing its conclusion on the testimony of Foster and Hecker, together with the incriminating emails among Olis and his co-indictees and a wealth of other evidence,"
},
{
"docid": "22948848",
"title": "",
"text": "But contrary to these requirements, Olis, his boss Gene Foster and his colleague Helen Sharkey, secretly put into place the “parent level” hedge and the “tear-up” agreements among Dynegy, ABG’s owner banks, and Citibank to ensure that the banks would not lose any money. The Government’s proof indicated that Olis, Foster, and Sharkey intentionally concealed the parent level hedge and tear-ups from Jim Hecker, the Arthur Andersen partner responsible for signing off on Dy-negy’s SEC statements, in order to obtain the desired accounting treatment of the transaction. On April 25, 2002, following its review of Project Alpha, the SEC required Dyne-gy to restate the cash flow as derived from a “financing” rather than “operations.” Because Dynegy was now seen to be borrowing rather than earning money from Project Alpha, Dynegy’s stock price was adversely affected. Foster, Sharkey, and Olis were indicted for conspiracy to commit mail fraud, wire fraud, and securities fraud (count 1), securities fraud (count 2), mail fraud (count 3) and wire fraud (counts 4-6). Foster and Sharkey pled guilty to one count each in exchange for maximum sentences of five years. Foster testified against Olis at trial. The jury convicted Olis on all counts. The district court sentenced Olis, applying the Sentencing Guidelines as mandatory, to 292 months in prison, three years supervised release, and a $25,000 fine. The offense level was extraordinarily high based on the court’s findings that the fraudulent scheme caused a loss of $105 million to one shareholder, the University of California Retirement System (“UCRS”); that Olis employed “sophisticated means” and a “special skill” to carry out the fraud; and that there were more than fifty victims of the fraud. Olis has appealed. II. SUFFICIENCY OF EVIDENCE Olis contends, almost perfunctorily, that the evidence does not support his conviction. In particular, he disputes the proof that he conspired to conceal two critical features of Project Alpha from Dynegy’s outside auditor Arthur Andersen— the “parent level” hedge and the “tear-up” agreements. This court will not disturb a jury’s verdict unless the record demonstrates that a rational jury could not have found each of the"
},
{
"docid": "11356709",
"title": "",
"text": "765 F.3d at 1301 (quoting U.S.S.G. § 2B1.1 cmt. background). In financial fraud cases, the loss calculation often drives the sentence. See, e.g., United States v. Olis, 429 F.3d 540, 545 (5th Cir. 2005) (“The most significant determinant of [the defendant’s] sentence is the guidelines loss calculation.”); United States v. Robles, No. CR 04-1594(B)SVW, 2015 WL 1383756, at *5 (C.D. Cal. Mar. 19, 2015) (“[T]he loss calculation in this case is the primary driver behind the Guidelines range—more than doubling the offense level and tripling the suggested sentence.... ”); United States v. Faulkenberry, 759 F.Supp.2d 915, 928 (S.D. Ohio 2010) (“[T]he harsh sentence recommended by the Guidelines is primarily driven by the loss calculation, which increases [the defendant’s] Base Offense Level by 30 points.”). There are two ways to measure loss under U.S.S.G. § 2B1.1, actual and intended loss, and we are instructed to take the greater of the two. U.S.S.G. § 2B1.1, cmt. n.3(A). Here, however, the government did not argue for an intended loss calculation; we thus focus on the calculation of actual loss. The government bears the burden of proving by a preponderance of the evidence actual loss attributable to the defendant’s conduct. United States v. Rodriguez, 751 F.3d 1244, 1255 (11th Cir. 2014), “[A] sentencing court is not generally required to make detailed findings of individualized losses to each victim.” United States v. Orton, 73 F.3d 331, 335 (11th Cir. 1996) (considering the similar predecessor guideline, U.S.S.G. § 2F1.1). Instead, the court may employ a variety of methods to derive a “reasonable estimate of the loss” to the victims based on the information available to the district court. United States v. Snyder, 291 F.3d 1291, 1295 (11th Cir. 2002); accord United States v. Ford, 784 F.3d 1386, 1396 (11th Cir. 2015); see also U.S.S.G. § 2B1.1 cmt. n.3(C)(iv) (providing that district courts should “tak[e] into account, as appropriate and practical under the circumstances,” a variety of factors including the “approximate number of victims multiplied by the average loss to each victim”). Although the district court may estimate the amount of loss, it cannot “speculate about the"
},
{
"docid": "4408103",
"title": "",
"text": "the government must show the defendant possessed a special skill. The requirement is easily met in this case because an accountant is one of the listed examples in the commentary. Second, the government must show the defendant used his special skill to facilitate the commission or concealment of his offense. Gandy, 36 F.3d at 915-16. In Gandy, we remanded for a further finding of whether the defendant podiatrist used his special skill to commit Medicare fraud because we concluded we could not determine from the district court’s findings or the record how the defendant used his special skill to commit fraud. Id. at 916. Mr. Rice claims the same result should pertain here because the district court did not make a specific finding about how he used his CPA skills for his tax evasion. Yet, the record, taken as a whole, demonstrates how Mr. Rice used his special skills. The district court heard all the evidence in the case and presumably in accepting the Presentence Report’s enhancement under § 3B1.3 agreed with its conclusion. Finally, Mr. Rice argues the different enhancements applied to increase his sentence all punish him for being an accountant who engaged in tax evasion. He contends the sophisticated means, special skill, and more than minimal planning enhancements overlap considerably. Applying all of them in this case results in improper double counting and a fundamentally unfair cumulative sentence. The sentencing guidelines reflect a general policy against double counting. This explains their provisions for grouping offenses and instances of similar conduct. U.S.S.G. § 1B1.3, comment, and § 3D1.2(d). Further, several specific guidelines require that a particular circumstance is not to be considered twice in calculating a defendant’s offense level. See, e.g., U.S.S.G. §§ 3B1.3; 3A1.1, comment, (n. 2); 3C1.1, comment, (n. 4). Case law has also considered double counting impermissible. United States v. Flinn, 18 F.3d 826, 829 (10th Cir.1994); see also Lowder, 5 F.3d at 472. This court has recently defined impermissible double counting under the sentencing guidelines in this fashion: Impermissible double counting or impermissible cumulative sentencing occurs when the same conduct on the part of"
},
{
"docid": "4408104",
"title": "",
"text": "Mr. Rice argues the different enhancements applied to increase his sentence all punish him for being an accountant who engaged in tax evasion. He contends the sophisticated means, special skill, and more than minimal planning enhancements overlap considerably. Applying all of them in this case results in improper double counting and a fundamentally unfair cumulative sentence. The sentencing guidelines reflect a general policy against double counting. This explains their provisions for grouping offenses and instances of similar conduct. U.S.S.G. § 1B1.3, comment, and § 3D1.2(d). Further, several specific guidelines require that a particular circumstance is not to be considered twice in calculating a defendant’s offense level. See, e.g., U.S.S.G. §§ 3B1.3; 3A1.1, comment, (n. 2); 3C1.1, comment, (n. 4). Case law has also considered double counting impermissible. United States v. Flinn, 18 F.3d 826, 829 (10th Cir.1994); see also Lowder, 5 F.3d at 472. This court has recently defined impermissible double counting under the sentencing guidelines in this fashion: Impermissible double counting or impermissible cumulative sentencing occurs when the same conduct on the part of the defendant is used to support separate increases under separate enhancement pro visions which necessarily overlap, are indistinct, and serve identical purposes. Flinn, 18 F.3d at 829. As already noted, Mr. Rice was sentenced alternatively under § 2T1.3 or § 2F1.1. Therefore, the sophisticated means enhancement of § 2T1.3(b)(2) cannot be considered with the more than minimal planning enhancement of § 2F1.1(b)(2)(A) for double counting purposes. The only way Mr. Rice received an impermissible cumulative sentence is if it was improper to enhance his sentence for use of a special skill under § 3B1.3 with either the sophisticated means or the more than minimal planning enhancements. Yet, each of these enhancements serves a distinct purpose. The purpose of the special skill enhancement is to punish those criminals who use their special talents to commit crime. In contrast, the sophisticated means and more than minimal planning enhancements are designed to target criminals who engage in complicated criminal activity because their actions are considered more blameworthy and deserving of greater punishment than a perpetrator of a simple"
},
{
"docid": "22948847",
"title": "",
"text": "appear to the outside world (and in particular to Dynegy’s auditor Arthur Andersen) as if the money was generated by Dynegy’s business operations. Project Alpha was designed to generate positive cash flow to Dynegy “from operations” during 2001 and negative cash-flow in 2002-05. Specifically, a special purpose entity (“SPE”) called ABG Gas Supply was created and owned by Deutsche Bank and Credit Suisse. During 2001, ABG Gas bought natural gas at market prices and sold it to Dynegy at a discount. Dynegy then sold the gas at market prices, netting $300 million. During 2002-05, Project Alpha arranged that ABG Gas would buy gas at market prices and resell it to Dynegy at above-market prices. That money would flow to the banks, which would recoup the $300 million, plus interest. To support the accounting characterization of the deal as cash from operations, ABG Gas and the lenders could not be guaranteed full repayment on their investment. Further, ABG Gas had to be sufficiently “independent” from Dynegy, and the owners of ABG Gas had to bear risk. But contrary to these requirements, Olis, his boss Gene Foster and his colleague Helen Sharkey, secretly put into place the “parent level” hedge and the “tear-up” agreements among Dynegy, ABG’s owner banks, and Citibank to ensure that the banks would not lose any money. The Government’s proof indicated that Olis, Foster, and Sharkey intentionally concealed the parent level hedge and tear-ups from Jim Hecker, the Arthur Andersen partner responsible for signing off on Dy-negy’s SEC statements, in order to obtain the desired accounting treatment of the transaction. On April 25, 2002, following its review of Project Alpha, the SEC required Dyne-gy to restate the cash flow as derived from a “financing” rather than “operations.” Because Dynegy was now seen to be borrowing rather than earning money from Project Alpha, Dynegy’s stock price was adversely affected. Foster, Sharkey, and Olis were indicted for conspiracy to commit mail fraud, wire fraud, and securities fraud (count 1), securities fraud (count 2), mail fraud (count 3) and wire fraud (counts 4-6). Foster and Sharkey pled guilty to one count"
},
{
"docid": "22948846",
"title": "",
"text": "EDITH H. JONES, Circuit Judge: Jamie Olis appeals from a judgment of conviction for which he was sentenced to 292 months in prison for securities fraud, mail and wire fraud, and conspiracy. The charges arose from Olis’s work as a tax lawyer and accountant at Dynegy Corporation (“Dynegy”) on a transaction called “Project Alpha.” Olis argues that the evidence was insufficient for conviction and that the district court improperly calculated his sentence. We hold that the conviction is factually supported, but Olis must be resentenced. Olis sufficiently preserved a Booker challenge to the court’s application of the sentencing guidelines as a mandatory scheme, and the district court overstated the loss caused by Olis’s crimes. We therefore AFFIRM the conviction, and VACATE and REMAND for resentencing. I. BACKGROUND The conviction arises from Olis’s position as Senior Director of Tax Planning and International (and later, Vice President of Finance) at Dynegy on a transaction called “Project Alpha,” a complex five-year deal involving natural gas transactions. Project Alpha was a plan to borrow $300 million and make it appear to the outside world (and in particular to Dynegy’s auditor Arthur Andersen) as if the money was generated by Dynegy’s business operations. Project Alpha was designed to generate positive cash flow to Dynegy “from operations” during 2001 and negative cash-flow in 2002-05. Specifically, a special purpose entity (“SPE”) called ABG Gas Supply was created and owned by Deutsche Bank and Credit Suisse. During 2001, ABG Gas bought natural gas at market prices and sold it to Dynegy at a discount. Dynegy then sold the gas at market prices, netting $300 million. During 2002-05, Project Alpha arranged that ABG Gas would buy gas at market prices and resell it to Dynegy at above-market prices. That money would flow to the banks, which would recoup the $300 million, plus interest. To support the accounting characterization of the deal as cash from operations, ABG Gas and the lenders could not be guaranteed full repayment on their investment. Further, ABG Gas had to be sufficiently “independent” from Dynegy, and the owners of ABG Gas had to bear risk."
},
{
"docid": "22948850",
"title": "",
"text": "elements of the offense beyond a reasonable doubt. United States v. Dahlstrom, 180 F.3d 677, 684 (5th Cir. 1999). The evidence, and all inferences reasonably drawn from it, must be viewed in the light most favorable to the verdict, regardless whether the conviction is based on direct or circumstantial evidence. Id. Olis asserts that the evidence demonstrated that everyone working on Project Alpha, including Arthur Andersen accountants, knew that the bank owners of ABG Gas were fully hedged against the risk of loss from variable gas prices. Olis’s boss Foster, testified, however, as a star prosecution witness and co-indictee, that he and Olis wrongly agreed to the tear-ups and the parent hedge and hid them from Arthur Andersen. Jim Hecker, an audit partner at Arthur Andersen, testified that he advised Dynegy against tear-ups, and Dynegy subsequently did not reveal this aspect of Project Alpha to him. A reasonable jury, basing its conclusion on the testimony of Foster and Hecker, together with the incriminating emails among Olis and his co-indictees and a wealth of other evidence, could easily have found Olis guilty beyond a reasonable doubt of all the charged crimes. III. SENTENCING Far more problematic are some of the issues Olis raises concerning his Booker objection, the district court’s use of the 2001 version of the Sentencing Guidelines, and the reasonableness of the district court’s loss calculation, all of which contributed to Olis’s sentence of imprisonment. We address each in turn. A Booker Objection Olis first argues that under Booker, his Sixth Amendment right to a jury trial was violated because the district court enhanced his sentence under the mandatory guidelines regime based on facts not proved to the jury beyond a reasonable doubt. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005)(“any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to the jury beyond a reasonable doubt.”). During sentencing, the district court"
},
{
"docid": "22948855",
"title": "",
"text": "case, the Government points to no evidence proving beyond a reasonable doubt that the district court would have sentenced Olis to nearly twenty-five years in prison had it acted under an advisory Sentencing Guidelines scheme as required by Booker. Therefore, we vacate Olis’s sentence and remand for resentencing. As Booker requires the district court to “consider” the guidelines before issuing a “reasonable” sentence, 125 S.Ct. at 757, 767, we must review the specific sentencing issues that have arisen in this case and provide an analytical framework to aid the district court in resentencing. B. The 2001 Sentencing Guidelines Olis contends that the district court erred by using the 2001 version of the Sentencing Guidelines, rather than the 2000 version, to calculate his sentence. Courts are required to “use the Guidelines Manual in effect on the date that the offense of conviction was committed.” U.S.S.G. § 1B1.11(b)(1). The guidelines add, “If a defendant is convicted of two offenses, one before and one after the effective date of the revised edition of the guidelines, the revised edition applies to both offenses.” U.S.S.G. § 1B1.11(b)(3). The jury convicted Olis for crimes that were committed during the years 2000 through early 2002. The jury found in Count 2 that the securities fraud in which Olis participated was coextensive with the conspiracy, and in Count 6 that Olis committed or aided and abetted wire fraud on March 13, 2002, the date that Dynegy’s 2001 Form 10-K was electronically filed with the SEC. The dates of these offenses plainly fall after the effective date of the November 2001 revisions. The jury additionally convicted Olis of the Count 1 conspiracy that lasted from on or about August 2000 through April 2002. This court has held that conspiracy “is a continuing offense” and that “[s]o long as there is evidence that the conspiracy continued after the effective date of the [amendments to the] guidelines, the Ex Post Facto Clause is not violated.” United States v. Buckhalter, 986 F.2d 875, 880 (5th Cir.1993). Moreover, unless a conspirator effectively withdraws from the conspiracy, he is to be sentenced under the"
},
{
"docid": "3106455",
"title": "",
"text": "whether the trial court’s method of calculating the amount of loss was legally acceptable.” Id. (internal quotation marks and citations omitted). Thus, although the government is correct that the district court’s estimate of the “intended loss” is a factual finding entitled to deference, the district court’s method of estimating the loss — in this case, looking to the retail prices, rather than the wholesale prices, of the stolen merchandise — is subject to de novo review. The Guidelines provide for a sentencing enhancement based on the amount of loss caused by the defendant’s conduct. U.S.S.G. § 2Bl.l(b)(l). The application note clarifies that “loss is the greater of actual loss or intended loss.” Id. § 2B1.1 cmt. n.3(A). Actual loss means “the reasonably foreseeable pecuniary harm that resulted from the offense.” Id. § 2B1.1 cmt. n.3(A)(i). Intended loss means “the pecuniary harm that was intended to result from the offense.” IcL § 2B1.1 cmt. n.3(A)(ii). Pecuniary harm is also defined: “harm that is monetary or that otherwise is readily measurable in money.” Id. § 2B1.1 cmt. n.3(A)(iii). The court “need only make a reasonable estimate of the loss,” which “shall be based on available information, taking into account, as appropriate and practicable under the circumstances,” a number of inclusive, enumerated factors. Id. § 2B1.1 cmt. n.3(C). One such factor is “[t]he fair market value of the property unlawfully taken, copied, or destroyed; or, if the fair market value is impracticable to determine or inadequately measures the harm, the cost to the victim of replacing that property.” Id. § 2B1.1 cmt. n.3(C)(i). Our precedents require that the loss inquiry focus on the “pecuniary impact on [the] victims” and utilize a “realistic, economic approach.” United States v. Olis, 429 F.3d 540, 545-46 (5th Cir.2005) (internal quotation marks omitted). Based on this principle, Lige contends that the economically realistic pecuniary impact on Sprint and Nextel is merely the wholesale value of the phones — the price at which Sprint and Nextel can purchase the phones. Using the retail value of the phones, he contends, would essentially include lost profits. However, Lige’s argument ignores the"
},
{
"docid": "22948865",
"title": "",
"text": "Dynegy’s price occurred either before the revelation of Project Alpha’s problems or more than a week after the announcement of the restatement of earnings caused by Project Alpha. Taken on the court’s own terms, a substantial portion of the entire loss on the UCRS investment in Dynegy, over $100 million, could not have been caused by Olis’s work on Project Alpha. During sentencing, moreover, Olis offered the expert report of a Rice University expert, Professor Bala Dharan, which explored numerous forces at work on the Dynegy stock price during the relevant periods. The court refused to consider the report, criticizing the expert’s analysis of whether Olis could have “reasonably foreseen” the impact of his conduct on the stock market. As the court observed, the economist was arguably stretching his expertise into an improper legal conclusion, but his statements on this matter are separate from his economic analysis of price and market movements. Professor Dhar-an’s report demonstrates that Dynegy stock declined during the period covering Project Alpha in tandem with the stocks of other publicly traded companies in the energy marketing and trading business. Further, Dynegy’s stock was negatively affected, even before the restatement of Project Alpha’s cash flow impact, by the company’s failed bid to acquire the faltering Enron. These factors and others cited in the report suggested that attributing to Olis the entire stock market decline suffered by one large or multiple small shareholders of Dynegy would greatly overstate his personal criminal culpability. Because the district court’s approach to the loss calculation did not take into account the impact of extrinsic factors on Dynegy’s stock price decline, Olis is entitled to resentencing on this factor, subject to the principles just discussed. D. Other Sentencing Issues Olis challenges, as duplicative, additional sentencing enhancements for the use of “sophisticated means”, U.S.S.G. § 2B1.1(b)(8)(C), and “special skill”, U.S.S.G. § 3B1.3. This court has held that double-counting is not impermissible unless the guidelines so state. United States v. Calbat, 266 F.3d 358, 363 (5th Cir.2001). These guidelines do not proscribe their joint application. Further, the district court properly cited a similar case, United"
},
{
"docid": "22948866",
"title": "",
"text": "companies in the energy marketing and trading business. Further, Dynegy’s stock was negatively affected, even before the restatement of Project Alpha’s cash flow impact, by the company’s failed bid to acquire the faltering Enron. These factors and others cited in the report suggested that attributing to Olis the entire stock market decline suffered by one large or multiple small shareholders of Dynegy would greatly overstate his personal criminal culpability. Because the district court’s approach to the loss calculation did not take into account the impact of extrinsic factors on Dynegy’s stock price decline, Olis is entitled to resentencing on this factor, subject to the principles just discussed. D. Other Sentencing Issues Olis challenges, as duplicative, additional sentencing enhancements for the use of “sophisticated means”, U.S.S.G. § 2B1.1(b)(8)(C), and “special skill”, U.S.S.G. § 3B1.3. This court has held that double-counting is not impermissible unless the guidelines so state. United States v. Calbat, 266 F.3d 358, 363 (5th Cir.2001). These guidelines do not proscribe their joint application. Further, the district court properly cited a similar case, United States v. Minneman, 143 F.3d 274, 283 (7th Cir.1998), which found no impermissible double counting. Olis used his special skills in accounting and tax matters to advance an extremely sophisticated, but fraudulent, scheme. The final 4-level enhancement against Olis was based on there being more than 50 victims of his crime, U.S.S.G. § 2B1.1 (b)(2)(B). The probation office counted as victims nearly all 140,000 employees of UCRS. This is a questionable assessment, as pension plans attempt to balance gains and losses to their beneficiaries, rendering any impact upon UCRS plan members far more attenuated than if they individually owned Dynegy shares. It is, however, inconceivable that fewer than fifty shareholders of Dynegy suffered a market loss from purchases or sales of stock caused by Olis’s fraud. This enhancement may unduly skew the guidelines range in “cook the books” securities frauds, but it clearly applies. See Coffee, supra at 246-47. Conclusion For these reasons, Olis’s conviction is affirmed, but he must be resentenced in accordance with Booker’s overall standard of reasonableness after the court “considers” the"
},
{
"docid": "22948856",
"title": "",
"text": "applies to both offenses.” U.S.S.G. § 1B1.11(b)(3). The jury convicted Olis for crimes that were committed during the years 2000 through early 2002. The jury found in Count 2 that the securities fraud in which Olis participated was coextensive with the conspiracy, and in Count 6 that Olis committed or aided and abetted wire fraud on March 13, 2002, the date that Dynegy’s 2001 Form 10-K was electronically filed with the SEC. The dates of these offenses plainly fall after the effective date of the November 2001 revisions. The jury additionally convicted Olis of the Count 1 conspiracy that lasted from on or about August 2000 through April 2002. This court has held that conspiracy “is a continuing offense” and that “[s]o long as there is evidence that the conspiracy continued after the effective date of the [amendments to the] guidelines, the Ex Post Facto Clause is not violated.” United States v. Buckhalter, 986 F.2d 875, 880 (5th Cir.1993). Moreover, unless a conspirator effectively withdraws from the conspiracy, he is to be sentenced under the amendments to the guidelines, even if he did not commit an act in furtherance of the conspiracy after the date of the new guidelines, or did not know of acts committed by other co-conspirators after the date of the new guidelines, where it was foreseeable that the conspiracy would continue past the effective date of the amendments. United States v. Devine, 934 F.2d 1325, 1332 (5th Cir.1991). Devine applied to a defendant whose criminal conspiracy straddled the period before and after the effective date of the Guidelines, but its reasoning also applies where, as here, the conspiracy continued into the period covered by revised Guidelines. Olis never withdrew from the conspiracy. Because three of the counts are governed by the 2001 amendments to the guidelines, the other three counts (mail fraud committed in April 2001 and wire fraud committed in August and October 2001) are also controlled by the November 2001 amendments. C. Loss Calculation under the Sentencing Guidelines The most significant determinant of Olis’s sentence is the guidelines loss calculation. By the district court’s"
},
{
"docid": "22948851",
"title": "",
"text": "could easily have found Olis guilty beyond a reasonable doubt of all the charged crimes. III. SENTENCING Far more problematic are some of the issues Olis raises concerning his Booker objection, the district court’s use of the 2001 version of the Sentencing Guidelines, and the reasonableness of the district court’s loss calculation, all of which contributed to Olis’s sentence of imprisonment. We address each in turn. A Booker Objection Olis first argues that under Booker, his Sixth Amendment right to a jury trial was violated because the district court enhanced his sentence under the mandatory guidelines regime based on facts not proved to the jury beyond a reasonable doubt. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005)(“any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to the jury beyond a reasonable doubt.”). During sentencing, the district court determined the following facts: (1) Olis was responsible for an approximately $105 million loss to UCRS, which enhanced his base offense by twenty-six levels under the Sentencing Guidelines; (2) Olis’s offense involved sophisticated means, requiring a two-level enhancement; (3) Olis used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, resulting in another two-level enhancement; and (4) Olis’s scheme included fifty or more victims, requiring a four-level sentencing enhancement. None of these findings was proven beyond a reasonable doubt to the jury or admitted by Olis. Relying on these judge-found facts, and as mandated by the Guidelines, the court calculated Olis’s total offense level to be 40. Olis had no criminal history for guidelines purposes. These two determinations yielded a sentencing range of 292 to 365 months in prison. See U.S.S.G. Ch. 5 Pt. A. The district court, noting that it was “required to follow ... the Federal Sentencing Guidelines,” stated that it took “no pleasure in sentencing [Olis] to 292 months,” but that it was the court’s"
},
{
"docid": "22948863",
"title": "",
"text": "extant company. Nevertheless, each case takes seriously the requirement to correlate the defendant’s sentence with the actual loss caused in the marketplace, exclusive of other sources of stock price decline. Several features of the decisions are noteworthy. First, given the time and evidentiary constraints on the sentencing process, the methods adopted in these cases are necessarily less exact than the measure of damage applicable in civil securities litigation. Second, Snyder and Bakhit rejected an oversimplified market capitalization measure of damages proffered by the Government in favor of a more nuanced approach modeled upon loss causation principles. See Snyder, 291 F.3d at 1295-96; Bakhit, 218 F.Supp.2d at 1238. As the Bakhit court noted, the Government’s use of stock prices the day before and the day after the revelation of the fraud did not account either for the actual price at which most holders purchased the company’s shares, or for the influence of outside factors on the change in price. Bakhit, 218 F.Supp.2d at 1239. The Government’s approach measured paper losses in the company’s value, which have no correlation with losses to actual shareholders who bought or sold based on fraudulent information. Third, the cases rejected defendants’ arguments that attempted to reason away all losses caused by the fraud. Finally, the factual variations among these cases reflect the importance of thorough analyses grounded in economic reality. In this case, the district court, faced with a “cook the books” fraud, overemphasized his discretion as factfinder at the expense of economic analysis. Thus, the court elected to rely solely on the Heil testimony concerning the purchase and sale of UCRS stock as a measure of the loss caused by Olis’s offense. When Heil’s testimony was offered at trial to prove guilt, Olis’s counsel was not placed on notice that the same evidence might later pertain to the guidelines loss calculation. For that reason, other significant extrinsic causes of the UCRS loss were not explored, much less quantified, at trial. UCRS bought most of its Dynegy holdings at the top of the market. As Olis pointed out at sentencing, however, two-thirds of the drop in"
},
{
"docid": "22948857",
"title": "",
"text": "amendments to the guidelines, even if he did not commit an act in furtherance of the conspiracy after the date of the new guidelines, or did not know of acts committed by other co-conspirators after the date of the new guidelines, where it was foreseeable that the conspiracy would continue past the effective date of the amendments. United States v. Devine, 934 F.2d 1325, 1332 (5th Cir.1991). Devine applied to a defendant whose criminal conspiracy straddled the period before and after the effective date of the Guidelines, but its reasoning also applies where, as here, the conspiracy continued into the period covered by revised Guidelines. Olis never withdrew from the conspiracy. Because three of the counts are governed by the 2001 amendments to the guidelines, the other three counts (mail fraud committed in April 2001 and wire fraud committed in August and October 2001) are also controlled by the November 2001 amendments. C. Loss Calculation under the Sentencing Guidelines The most significant determinant of Olis’s sentence is the guidelines loss calculation. By the district court’s reasoning, this added twenty-six levels to his base offense level and alone placed Olis in a punishment range exceeding fifteen years’ imprisonment. This court reviews a district court’s factual findings at sentencing for clear error and its legal analysis de novo. Nixon v. Epps, 405 F.3d 318, 322 (5th Cir.2005). While the district court need only make a “reasonable estimate of loss,” U.S.S.G. § 2B1.1 app. note to (c)(2002), this court first determines whether the trial court’s method of calculating the amount of loss was legally acceptable. United States v. Saacks, 131 F.3d 540, 542-43 (5th Cir. 1997); United States v. Krenning, 93 F.3d 1257, 1269 (5th Cir.1996). Although otherwise amended in 2001, the guideline covering securities fraud has continuously provided that a sentencing court should use the greater of actual or intended loss. § 2B1.1, cmt. n 2.2(a) (2001). The guidelines measure criminal culpability in theft and economic crimes according to their pecuniary impact on victims. Actual loss, which is at issue here, “means the reasonably foreseeable pecuniary harm that resulted from the offense.”"
},
{
"docid": "22948852",
"title": "",
"text": "determined the following facts: (1) Olis was responsible for an approximately $105 million loss to UCRS, which enhanced his base offense by twenty-six levels under the Sentencing Guidelines; (2) Olis’s offense involved sophisticated means, requiring a two-level enhancement; (3) Olis used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, resulting in another two-level enhancement; and (4) Olis’s scheme included fifty or more victims, requiring a four-level sentencing enhancement. None of these findings was proven beyond a reasonable doubt to the jury or admitted by Olis. Relying on these judge-found facts, and as mandated by the Guidelines, the court calculated Olis’s total offense level to be 40. Olis had no criminal history for guidelines purposes. These two determinations yielded a sentencing range of 292 to 365 months in prison. See U.S.S.G. Ch. 5 Pt. A. The district court, noting that it was “required to follow ... the Federal Sentencing Guidelines,” stated that it took “no pleasure in sentencing [Olis] to 292 months,” but that it was the court’s job “to follow the law.” The district court’s findings on the enhancements dramatically increased Olis’s sentencing range beyond the minimum span permitted by the jury’s verdict. The Government asserts, however, that Olis did not properly preserve his Booker objection and that we should re view Olis’s sentencing points for plain error. We disagree. Olis repeatedly objected before and during his sentencing hearing to both the district court’s loss calculation and the burden of proof utilized by the court. His objections regarding the loss calculation alerted the court to cases that acknowledged the potential for a constitutional violation when sentencing facts are not found by at least clear and convincing evidence. Olis’s objections were overruled and there is nothing to indicate that the district court made its findings on any basis other than a preponderance of the evidence. In United States v. Akpan, 407 F.3d 360, 375-76 (5th Cir. 2005), this court held that although one defendant “never explicitly mentioned the Sixth Amendment, Apprendi, or Blakely until his Rule 28(j) letter,” his objections during sentencing that"
},
{
"docid": "22948867",
"title": "",
"text": "States v. Minneman, 143 F.3d 274, 283 (7th Cir.1998), which found no impermissible double counting. Olis used his special skills in accounting and tax matters to advance an extremely sophisticated, but fraudulent, scheme. The final 4-level enhancement against Olis was based on there being more than 50 victims of his crime, U.S.S.G. § 2B1.1 (b)(2)(B). The probation office counted as victims nearly all 140,000 employees of UCRS. This is a questionable assessment, as pension plans attempt to balance gains and losses to their beneficiaries, rendering any impact upon UCRS plan members far more attenuated than if they individually owned Dynegy shares. It is, however, inconceivable that fewer than fifty shareholders of Dynegy suffered a market loss from purchases or sales of stock caused by Olis’s fraud. This enhancement may unduly skew the guidelines range in “cook the books” securities frauds, but it clearly applies. See Coffee, supra at 246-47. Conclusion For these reasons, Olis’s conviction is affirmed, but he must be resentenced in accordance with Booker’s overall standard of reasonableness after the court “considers” the guidelines including a recalculation of the amount of loss for which Olis should be held responsible. CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED. . We recite the facts in the light most favorable to the verdict. The description of the transaction at issue is extremely simplified for the sake of brevity. . Foster and Sharkey are set to be sentenced thirty days after the decision in this appeal. . We do not dwell on the elements of each and every count, because Olis's brief neither argues nor supports such a level of detail. . In addition to arguing insufficiency of the evidence, Olis requests this court to order a new trial because the evidence preponderates heavily against the verdict such that a mistake was made. Olis concedes that no motion for a new trial was filed in the district court. A district court \"is powerless to order a new trial except on the motion of the defendant.” United States v. Brown, 587 F.2d 187, 189 (5th Cir.1979)(citing Fed. R.Crim. P. 33). Olis cannot demonstrate that the"
}
] |
693088 | for overlapping professional attention to a Chapter 11 debtor’s problems is not required by the Code. There will be many situations where it would be necessary and reasonable for several professionals to work together: for example, coordination of services, delegation of responsibilities, development of strategies, sharing of research responsibilities and results, preparation and execution of hearings and trials, multi-party negotiations and drafting of complex documents. This is particularly true in contested Chapter 11 cases where success hinges on timing, creativity, and decisive action. See In re Microwave Products of America, Inc., 102 B.R. 661 (Bankr.W.D.Tenn.1989); In re Washington Mfg. Co., 101 B.R. 944, 19 BANKR.CT.DEC. (CRR) 895 (Bankr.M.D.Tenn.1989); In re Carrousel Motels, Inc., 97 B.R. 898 (Bankr.S.D.Ohio 1989); REDACTED In re Amatex Corp., 70 B.R. 624 (Bankr.E.D.Pa.1985); In | [
{
"docid": "23002478",
"title": "",
"text": "is willing to pursue the 11 U.S.C. § 506(c) claim on behalf of the claimant, the claimant will be able to collect assuming the 11 U.S.C. § 506(c) claim is meritorious. If the trustee alone has standing, and the trustee is hostile to the claimant, the claimant’s claims will be denied without notice and an opportunity for a hearing. Such a result would raise serious due process questions. Thus, the debtor’s attorneys should be allowed to pursue their 11 U.S.C. § 506(c) claims on their own. This Court, not Mr. Raleigh, should determine the merits of this claim. By the same token, 11 U.S.C. § 506(c) should not be read to be limited to those services rendered by a trustee or trustee’s professionals. It clearly applies to services rendered by a debtor in possession or professionals for a debtor in possession which benefit a secured creditor. In re Birdsboro Casting Corp., 69 B.R. 955 (Bankr.E.D.Pa.1987); Equitable Gas v. Equibank, N.A. (In re McKeesport Steel Castings Co.), 799 F.2d 91 (3d Cir.1986). In addition it could include services rendered by others as well. For example, suppose an attorney for an official unsecured creditors committee in a Chapter 11 case is instrumental in procuring a buyer for collateral at a price that is very favorable to the secured creditor, and the case thereafter fails so that there is nothing available to compensate that attorney. To deny the attorney compensation from the collateral for those services which clearly benefitted the secured creditor would be to give the secured creditor a windfall. In effect, the secured creditor should pay for the benefit it got. See In re T.P. Long Chemical, Inc., 45 B.R. 278 (Bankr.N.D.Ohio 1985). See also In re Baum’s Bologna, Inc., 50 B.R. 689 (Bankr.E.D.Pa.1985); In re Codesco, Inc., 18 B.R. 225 (Bankr.S.D.N.Y.1982). That is the purpose underlying 11 U.S.C. § 506(c). See In re Loop Hospital Partnership, 50 B.R. 565 (Bankr.N.D.Ill.1985); In re Sonoma V, 24 B.R. 600 (BAP-9th Cir.1982). Therefore, this Court will entertain the 11 U.S.C. § 506(c) claim of LB & B, the counsel to the official unsecured"
}
] | [
{
"docid": "13934968",
"title": "",
"text": "TIME Courts are divided on how travel time should be treated. Some courts hold that travel time should be compensated at 50% of the attorney’s normal hourly rate. In re Taylor, 66 B.R. 390 (Bankr.W.D.Pa.1986). However, other courts have refused to discount travel time. In re Frontier Airlines, Inc., 74 B.R. 973 (Bankr.D.Colo. 1987). This court has previously held that travel time should be billed at a reduced rate. In re Microwave Products of America, 104 B.R. 900 (Bankr.W.D.Tenn.1989). EXPENSES All expenses must be adequately documented in order to be reimbursed, and must be incurred by a “professional person” under § 327(a) or § 1103, 11 U.S.C. § 330(a). In re Washington Mfg. Co., 101 B.R. 944 (Bankr.M.D.Tenn.1989). Further, time entries for telephone calls, conferences, research, etc., must indicate the persons involved, and the subject matter. In re Pettibone Corp., 74 B.R. 293 (Bankr.N.D.Ill.1982). The actual cost of photocopying, long-distance telephone charges, postal expense, and travel costs may be reimbursed. Matter of Pothoven, 84 B.R. 579 (Bankr.S.D.Iowa 1988). However, charges which are part of the cost of operating overhead are not properly chargeable to the bankruptcy estate. Id. The court notes that the future of the instant debtor is uncertain. This interim application covers the first six (6) months of the debtor’s existence, and the debtor’s counsel’s aggregate interim fee requests approximate Two Hundred Thousand Dollars ($200,000.00). While there is no Bankruptcy Code mandate that a hold-back be imposed in every case, the court has discretion to impose a holdback in appropriate cases. In re Wilson Foods Corp., 36 B.R. 317 (Bankr.W.D.Okla.1984). In the instant situation, the court deems that a 25% holdback is appropriate, and in the best interest of the estate. Therefore, interim compensation of 75% will be awarded, and expenses will be allowed in full. Inasmuch as this is an interim application, the court reserves any determination on reasonableness, duplication, travel time, and other issues raised in United States Trustee’s objection until the final fee application. Therefore, the 75% interim compensation and expenses allowed are, however, subject to the proviso that the court may allow final compensation"
},
{
"docid": "4027477",
"title": "",
"text": "he was a “professional person” as that term is utilized in 11 U.S.C. § 327. In re Marion Carefree Ltd. Partnership, 171 B.R. 584, 588 (Bankr. N.D.Ohio 1994); Stahl v. Bartley Lindsay Co. (In re Bartley Lindsay Co.), 137 B.R. 305, 309 (D.Minn.1991 ); In re United Color Press, Inc., 129 B.R. 143, 145 (Bankr.S.D.Ohio 1991); In re Washington Mfg. Co., 101 B.R. 944, 959 (Bankr.M.D.Tenn.1989); In re Carolina Sales Corp., 45 B.R. 750 (Bankr.E.D.N.C.1985). The testimony at the hearing indicated that Jones was brought into the Debtor corporation to straighten out a “commercial disaster.” (Transcript of 06/26/96 at 41.) In addition, it was apparent from the testimony solicited from former counsel to the Debtor corporation, Benjamin V.R. Con-Ion, Esquire, that Jones performed what is generally described as paralegal services in assisting counsel in representing the Debtor-in-Possession. This Court has little difficulty in concluding that the services performed by Jones were that of a professional assisting the Debtor, albeit without authority of the Court. That being the case, the transfer of funds to Jones represents property that should be returned to the Debtor’s estate. Stahl v. Bartley Lindsay Co. (In re Bartley Lindsay Co.), 137 B.R. 305, 309 (D.Minn.1991). Jones, however, raises the issue of whether the statute of limitations may prevent the U.S. Trustee from making such a recovery on behalf of the estate. 11 U.S.C. § 549 addresses post-petition transactions. That section states that transfers of property of the estate, not authorized by the court, can be avoided by the trustee. Subparagraph (d) of that section reads: “An action or proceeding under this section may not be commenced after the earlier of— (1) two years after the date of the transfer sought to be avoided; or (2) the time the case is closed or dismissed.” In this case, the transfers in question occurred during the time the Debtor was in Chapter 11. It was more than four (4) years later that the U.S. Trustee filed the subject Motion. At the time of the hearing, Lawrence G. Frank, Esquire, the Chapter 7 trustee, acknowledged that he was aware of"
},
{
"docid": "16456230",
"title": "",
"text": "This amount includes amounts expended for travel, meals, and lodging for Latino’s Denver-based employees while they worked in Pueblo. Various other fees and expenses are also apparently included in this figure. . Latino organized a Cinco de Mayo dance and outdoor festival in 1989. Ticket sale and advertising revenues were collected by Latino and expenses were paid directly from the revenues. Latino states that immediate payment was expected by the performers. Carson was later provided with an accounting. . Latino provided certain business insurance at no additional charge. . The definition of “person” includes \"individual, partnership, and corporation, but does not include governmental unit.\" 11 U.S.C. § 101(35). . A wide range of people have been found to fit within the definition of “professional.” Many of these courts have come to this conclusion with little or no written analysis. See, e.g. Bennett v. Williams, 892 F.2d 822 (9th Cir.1989) (property manager); F/S Airlease II, Inc. v. Simon, 844 F.2d 99 (3rd Cir.1988) cert. denied 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 110 (1988) (broker marketing aircraft); Matter of Federated Department Stores, Inc., 114 B.R. 501 (Bankr.S.D.Ohio 1990) (financial consultants); In re Providence Television Limited Partnership, 113 B.R. 446 (Bankr.N.D.Ill.1990) (media broker hired to sell television station); In re 222 Liberty Associates, 110 B.R. 196 (Bankr.E.D.Pa.1990) (realtor); In re Phoenix Steel Corp., 110 B.R. 141 (Bankr.D.Del.1989) (workout specialist); In re Microwave Products of America, Inc., 94 B.R. 971 (Bankr.W.D.Tenn.1989) (public relations firm); In re American Int'l Airways, Inc., 69 B.R. 396 (Bankr.E.D.Pa.1987) (financial management consultants); In re Ewing, 54 B.R. 952 (D.Colo.1985) (real estate broker); In re Simasko Production Co., 47 B.R. 444 (D.Colo.1985) (investment broker); In re Malden Mills, Inc., 42 B.R. 476 (Bankr.D.Mass.1984) (management consultants); In re Zeus America Management Consultants, Inc., 27 B.R. 853 (Bankr.N.D.Ohio 1983) (private investigator); In re Morton Shoe Companies, Inc., 22 B.R. 449 (Bankr.D.Mass.1982) (financial expert); In re WFDR, Inc., 22 B.R. 266 (Bankr.N.D.Ga.1982) (management consultant); In re Holiday Mart, Inc., 18 B.R. 212 (Bankr.D.Haw.1982) (architect). But see, Matter of Reda, Inc., 54 B.R. 871, 882 n. 25 (Bankr.N.D.Ill.1985) (insurance adjuster is not"
},
{
"docid": "12803737",
"title": "",
"text": "Courts.” 49 B.R. 926, 13 Bankr.Ct.Dec. at 94. See also In re DeLorean Motor Co., 49 B.R. 900, 13 Bankr.Ct.Dec. (CRR) 60 (Bankr.E.D.Mich.1985). The court emphasized the facts that the chapter 11 case was in a liquidation posture, the trustee had commenced numerous accounts receivable actions in an effort to generate funds for distribution to the debtor’s creditors and the trustee was in need of a forum to efficiently litigate the various proceedings. Thus, contrary to the Defendants position, ample case law exists to support the proposition that collection of a debtor’s accounts receivable is a core proceeding. See, e.g., In re Franklin Computer, Inc., 50 B.R. 620, 13 Bankr.Ct.Dec. (CRR) 209 (Bankr.E.D.Pa.1985); In re All American of Asburton, Inc., 49 B.R. 926, 13 Bankr.Ct.Dec. (CRR) 93 (Bankr.N.D.GA 1985); In re Baldwin United Corp., 48 B.R. 49 (Bankr.S.D.Ohio 1985). Likewise, contract claims have been determined to involve property interests of the estate, warranting treatment as core proceedings. See, e.g., In re Pied Piper Casuals, 50 B.R. 549, 13 Bankr.Ct.Dec. (CRR) 290 (Bankr.S.D.N.Y. 1985); In re Lion Capital Group, 46 B.R. 850 (Bankr.S.D.N.Y.1985); see also Ram Construction, Inc. v. Port Authority of Allegheny Co., 49 B.R. 363, 13 Bankr.Ct. Dec. (CRR) 279 (Bankr.W.D.Pa.1985). The Supreme Court in Marathon failed to delineate the extent of state common law involvement in traditional bankruptcy matters which would convert a core proceeding to a non-core proceeding. Nevertheless, issues involved in litigation to collect account receivables or to collect damages for breach of contract pose no unsettled questions of state law and do not raise issues of comity with the state courts that would preclude their being heard by non-Article III bankruptcy judges. As Judge Goldhaber noted in In re Franklin Computer Corp., “[qjuestions arising under accounts receivable litigation are frequently nothing more than a determination of whether goods received are conforming, whether a simple contract has been breached and the arithmetic calculation of resulting damage.” 50 B.R. 620, 13 Bankr.Ct. Dec. at 213. Clearly, that reasoning is applicable hear. Thus, in determining whether collection of an account receivable is core proceeding, this Court, contrary to"
},
{
"docid": "23347563",
"title": "",
"text": "In re Freshley, 69 B.R. 96, 15 BANKR.CT.DEC. (CRR) 533 (Bankr.N.D.Ga.1987); In re Harris, 62 B.R. 391, 14 BANKR.CT.DEC. (CRR) 640, 15 COLLIER BANKR. CAS.2d (MB) 103 (Bankr.E.D.Mich.1986); In re Ratledge, 31 B.R. 897, 10 BANKR.CT.DEC. (CRR) 1241 (Bankr.E.D.Tenn.1983); AMFAC Distribution Corp. v. Wolff (In re Wolff), 22 B.R. 510, 512, 9 BANKR.CT.DEC. (CRR) 451 (9th Cir. BAP 1982); In re Perkins, 55 B.R. 422, 424 (Bankr.N.D.Okla.1985); In re Dziedzic, 9 B.R. 424, 427 (Bankr.S.D.Tex.1981); In re Kovich, 4 B.R. 403, 407 (Bankr.W.D.Mich.1980). Other courts have departed from or embellished upon the four-factor test of fairness. See In re Green, 70 B.R. 164 (Bankr.W.D.Ark.1986); In re Lawson, 93 B.R. 979 (Bankr.N.D.Ill.1988). The Chapter 13 cases interpreting the fairness of discrimination among classes under § 1322(b)(1) provide guidelines and analysis useful for § 1129(b)(1) purposes. Many of the same factual considerations arise in Chapter 11 cases. For example, does the proposed discrimination protect a relationship with specific creditors that the debtor needs to reorganize successfully? See In re Perskin, 9 B.R. 626, 7 BANKR.CT.DEC. (CRR) 798, 4 COLLIER BANKR.CAS.2d (MB) 294 (Bankr.N.D.Tex.1981) (separate favorable classification of credit cards is fair for a traveling salesman); In re Kovich, 4 B.R. at 407 (discrimination in favor of a landlord may be fair if alternative for debtor is Chapter 7 case in which other unsecured claimholders will receive no distribution); In re Freshley, 69 B.R. 96, 15 BANKR.CT.DEC. (CRR) 533 (Bankr.N.D.Ga.1987) (not unfair to pay student loan in full and 1% to other unsecured claims where debtor’s future income prospects depend on finishing school); In re Ragsdale, 15 B.R. 668 (Bankr.N.D.Ga.1980) (fair to discriminate in favor of claimholders partially secured by a car necessary to the debtor’s business); AMFAC Distribution Corp. v. Wolff (In re Wolff), 22 B.R. 510, 512, 9 BANKR.CT.DEC. (CRR) 451 (9th Cir.BAP 1982) (on appropriate facts, a debtor engaged in business could demonstrate fairness of discrimination in favor of material suppliers and business insurer); In re Hill, 4 B.R. 694, 699 (Bankr.D.Kan.1980) (higher payments to health care professionals justified to ensure continued treatment); In re Terry, 78 B.R. 171 (Bankr.E.D.Tenn.1987)"
},
{
"docid": "16697485",
"title": "",
"text": "credit in the ordinary course of business under section 364(a), court authorization after notice and an opportunity for a hearing is required. In determining whether to approve such a transaction, the Court acts in its informed discretion. Section 364(c) and (d) both state that the court “may authorize_” (emphasis added). A court, however, may not approve any credit transaction under subsection (c) unless the debtor demonstrates that it has reasonably attempted, but failed, to obtain unsecured credit under sections 364(a) or (b). 11 U.S.C. § 364(e); see In re Antico Mfg. Co., 31 B.R. 103, 106, 10 Bankr.Ct.Dec. 1085 (Bankr.E.D.N.Y.1983). Cf. Bray v. Shenandoah Fed. Sav. and Loan Ass’n (In re Snowshoe Co.), 789 F.2d 1085, 1088, Bankr.L.Rep. (CCH) 1171, 146 (4th Cir.1986) (while the trustee must make an effort to find alternative credit sources before section 364(d) becomes available, section 364 imposes no duty upon the trustee to seek credit from every possible lender). Similarly, obtaining credit under section 364(d) may not be authorized if it appears that credit can be obtained under the other subsections of 364. Once unavailability of less intrusive credit has been shown and adequate protection found if required, the bankruptcy courts, in applying discretion under section 364(b), (c), and (d) have recognized that their discretion is not unbridled. Acknowledging that Congress, in Chapter 11, delicately balanced the hope of debtors to reorganize and the expectations of creditors for payment, the courts have focused their attention on proposed terms that would tilt the conduct of the bankruptcy case; prejudice, at an early stage, the powers and rights that the Bankruptcy Code confers for the benefit of all creditors; or leverage the Chapter 11 process by preventing motions by parties-in-interest from being decided on their merits. In re Tenny Village Co., 104 B.R. 562, 567-70 (Bankr.D.N.H.1989); In re St. Mary Hospital, 86 B.R. 393, 551, 17 Bankr.Ct.Dec. 685 (Bankr.E.D.Pa.1988); In re Crouse Group, Inc., 71 B.R. 544, 550-51, 15 Bankr.Ct.Dec. 939 (Bankr.E.D.Pa.1987). They recognize that debtors-in-possession generally enjoy little negotiating power with a proposed lender, particularly where the lender has a pre-petition lien on cash collateral."
},
{
"docid": "4027476",
"title": "",
"text": "the Debtor’s Application on July 19,1991. Notwithstanding this scenario, the Debtor, in fact, employed Roland S. Jones (“Jones”) as a manager and chief financial officer with a weekly salary of One Thousand Six Hundred Dollars ($1,600.00). It was estimated that the total amount of Twenty-Two Thousand Dollars ($22,000.00) was paid to Jones during this employment. (Transcript of 06/26/96 at 67.) On or about October 15, 1991, the First National Bank of Mifflintown (“Bank”) filed a Motion to disapprove the employment of Jones but that Motion appears to have been subsequently abandoned by the Bank. While Jones did not appear at the time of hearing on this matter, he did, on June 12, 1996, file a Motion to Dismiss arguing that he was not a professional as that term is used in 11 U.S.C. § 327 and, further, that the U.S. Trustee’s Motion was barred by the statute of limitations. There is ample authority to conclude that the services provided by Jones were equivalent to that of a business consultant and, therefore, the Court finds that he was a “professional person” as that term is utilized in 11 U.S.C. § 327. In re Marion Carefree Ltd. Partnership, 171 B.R. 584, 588 (Bankr. N.D.Ohio 1994); Stahl v. Bartley Lindsay Co. (In re Bartley Lindsay Co.), 137 B.R. 305, 309 (D.Minn.1991 ); In re United Color Press, Inc., 129 B.R. 143, 145 (Bankr.S.D.Ohio 1991); In re Washington Mfg. Co., 101 B.R. 944, 959 (Bankr.M.D.Tenn.1989); In re Carolina Sales Corp., 45 B.R. 750 (Bankr.E.D.N.C.1985). The testimony at the hearing indicated that Jones was brought into the Debtor corporation to straighten out a “commercial disaster.” (Transcript of 06/26/96 at 41.) In addition, it was apparent from the testimony solicited from former counsel to the Debtor corporation, Benjamin V.R. Con-Ion, Esquire, that Jones performed what is generally described as paralegal services in assisting counsel in representing the Debtor-in-Possession. This Court has little difficulty in concluding that the services performed by Jones were that of a professional assisting the Debtor, albeit without authority of the Court. That being the case, the transfer of funds to Jones represents"
},
{
"docid": "8345643",
"title": "",
"text": "absent exceptional circumstances); In re Sinor, 87 B.R. 620, 624 (Bankr.E.D.Cal.1988) ($50 per hour); In re Amatex Corp., 70 B.R. 624, 627 (Bankr.E.D.Pa.1985) ($40 per hour); In re Pothoven, 84 B.R. 579, 585 (Bankr.S.D.Iowa 1988) Qk of hourly rate); In re S.T.N. Enterprises, 70 B.R. 823, 837 (Bankr.D.Vt.1987) (% of hourly rate); In re C & J Oil Co., 81 B.R. 398, 404 (Bankr.W.D.Va.1987) (75% of hourly rate); In re Carter, 101 B.R. 170, 171 (Bankr.D.S.D.1989) (full hourly rate). Non-bankruptcy courts also do not provide a clear direction, see, e.g., United States v. State of Washington, 626 F.Supp. 1405, 1447 n. 23 (W.D.Wash.1985) ($40 per hour); Maciera v. Pagan, 698 F.2d 38, 40 (1st Cir.1983) (V2 of hourly rate); McDonald v. Armontrout, 860 F.2d 1456, 1463 (8th Cir.1988) (V2 of hourly rate); Rose Confections, Inc. v. Ambrosia Chocolate Co., 816 F.2d 381, 396 (8th Cir.1987) (full hourly rate); Craik v. Minnesota State University Board, 738 F.2d 348, 350 (8th Cir.1984) (full hourly rate). The only principle that is eminently clear from these cases is that the courts have broad discretion in awarding fees, In re Temple Retirement Community, 97 B.R. 333, 336 (Bankr.W.D.Tex.1989). For guidance this Court shall look to § 330(a)(1) of the Bankruptcy Code, which allows “reasonable compensation for actual, necessary services,” 11 U.S.C. § 330(a)(1) (1990), and the principles underlying it. The former Bankruptcy Act's preoccupation with frugality and economy to the estate’s assets was abandoned in the new Code and was replaced by a concern for attracting quality practitioners to the bankruptcy field, Boston and Maine Corp. v. Sheehan, Phinney, Bass & Green, P.A., 778 F.2d 890, 897 (1st Cir.1985); In re McCombs, 751 F.2d 286, 288 (8th Cir.1984). Although economy to the estate is still a consideration when determining the appropriateness of fees, Boston and Maine Corp., 778 F.2d at 898; Carter, 101 B.R. at 172; Temple Retirement Community, 97 B.R. at 336-37, this Court has previously held and still believes that bankruptcy courts must “insure that bankruptcy specialists receive no less compensation for the value of their services than their counterparts in other areas"
},
{
"docid": "8986067",
"title": "",
"text": "a post-petition transaction with the debtor estate rather than from a prepetition transaction with the debtor.... ”); In re Cardinal Industries, Inc., 142 B.R. 801, 804 (Bankr.S.D.Ohio 1992)(“If the commitments of the parties arose pre-petition, there is no administrative ex pense payable from the bankruptcy estate.”); In re Highland Group, Inc., 136 B.R. 475, 481 (Bankr.N.D.Ohio 1992)(“Accordingly, J.C. Penney’s claim would be a prepetition claim, if allowed, and therefore, it would not rise to an administrative expense status.”); In re Great Northern Forest Products, Inc., 135 B.R. 46, 59 (Bankr.W.D.Mich.1991)(“Only postpetition debts may be accorded administrative expense priority”); Firearms Import and Export Corp. v. United Capitol Ins. Co. (In re Firearms Import and Export Corp.), 131 B.R. 1009, 1015 (Bankr.S.D.Fla.1991)(“As a general principle, ‘only those obligations of a debtor’s estate which arise post-petition ... are entitled to treatment as administrative expenses.’ ”); In re Balport Const. Co., Inc., 123 B.R. 174, 180 (Bankr.S.D.N.Y.1991)(“Only those services and expenses which were performed or incurred by entities described in section 503(b)(3)(D) during the pendency of the Chapter 11 case and which constituted a ‘substantial contribution’ to the Chapter 11 case, are eligible for reimbursement on an administrative priority basis.”); In re I.D. Craig Service Corp., No. 89-00640, 1990 WL 53050, *1 (Bankr.W.D.Pa. Apr. 23, 1990)(“At the hearing on April 4, 1990, the court granted petitioner Eric F. Solomon leave to file, by April 11, 1990, a brief citing authority to support his position that a prepetition claim for fees for attorney’s services constituted an allowable administrative expense under § 503(b). No brief was filed. In view of the express statutory language that administrative expenses are only those for services rendered postpetition, the motion will be denied.”); In re Michigan General Corp., 102 B.R. 554, 557 (Bankr.N.D.Tex.1988)(“[P]re-petition expenses are, by definition, not administrative expenses.”); In re Washington Mfg. Co., 101 B.R. 944, 958 (Bankr.M.D.Tenn.1989)(“[T]o the extent that its claim is for prepetition services contracted by the prepetition debtors, it does not qualify as an administrative expense claim pursuant to § 503(b)(1)(A).”); In re Precision Carwash Corp., 90 B.R. 34, 38 (Bankr.E.D.N.Y.1988)(“If the creditor’s services"
},
{
"docid": "18775411",
"title": "",
"text": "counsel’s reluctance to agree to lower David Partney’s salary and the highly favorable loan repayment terms given to David Partney under the debtor’s plan of reorganization. The committee finds further grounds for disqualification in counsel’s refusal to take any action to recover the assets which were transferred and the loans which were forgiven at the time of the stock redemption transaction. Additionally, IDFA contends that David Part-ney’s status as guarantor of the debtor’s financial obligations to certain creditors placed constraints on counsel’s treatment of those creditors during the chapter 11 proceeding. In response, the debtor argues that the committee lacks standing to object altogether because the case has been converted to chapter 7, that the committee and IDFA are estopped from challenging the Farrell Law Firm’s qualification by their delay in bringing the matter to the Court’s attention, that debtor’s opposition to lowering David Partney’s salary and its generous provision for David Partney’s loan repayment were necessary to prevent David Partney’s personal bankruptcy and the adverse effect that event would have on the debtor, and that debtor failed to pursue actions against insiders because the committee had already sought to do so and, by its own admission, was the more appropriate party for the task. The Court need not address the merits of the debtor’s arguments concerning standing and estoppel since the Court is entrusted with the responsibility to determine the qualification of debtor’s counsel and the reasonableness of counsel’s compensation independent of objections raised by any party. See, e.g., In re Temp-Way Corp., 95 B.R. 343, 346 (E.D.Pa.1989); In re Nephi Rubber Products Corp., 120 B.R. 477, 483 (Bankr.N.D.Ind.1990); In re Vanderbilt Associates, Ltd., 111 B.R. 347, 353 (Bankr.D.Utah), rev’d on other grounds, 117 B.R. 678 (D.Utah 1990); In re Wiedau’s, Inc., 78 B.R. 904, 907 (Bankr.S.D.Ill.1987); In re GHR Energy Corp., 60 B.R. 52, 65-66 (Bankr.S.D.Tex.1985). See also In re Carrousel Motels, Inc., 97 B.R. 898, 900 (Bankr.S.D.Ohio 1989) (objections to attorney compensation on basis that attorney represented an interest adverse to the bankruptcy estate \"goes to the integrity of the administration of the bankruptcy laws so that"
},
{
"docid": "1103220",
"title": "",
"text": "any formula for allocation); 2) a determination that the RTC’s rights to prevent invasion of its collateral are preserved; 3) a disallowance of estimated time; and 4) a delay in the order approving compensation until fee applications of all professionals have been heard. The last ground is moot as all fee applications have now been filed and heard. The Association in its objection to the Application argues that HASC has a material conflict of interest and is not disinterested because the Firm, in addition to representing the Trustee in these cases, represents Ginsberg in his individual Chapter 7 case, which is pending in this district. The Association alleges that HASC has advised the Trustee to reject its offer to purchase the Debtor’s assets in favor of an offer from another group because of the Trustee’s personal financial problems. A hearing on the HASC’s application was held on December 18, 1992. The Association made no showing of actual wrongdoing by the Trustee or HASC. Consequently, the Court overrules the objection on this ground, as well as for the reasons set forth below. IV. DISCUSSION A. Compensation Under 11 U.S.C. § 328(c), the Court may deny compensation for services of a professional if at anytime the professional is not disinterested or holds an interest adverse to the estate. In re Carrousel Motels, Inc., 97 B.R. 898 (Bankr.S.D.Ohio 1989). The statute contains a two prong test requiring that professionals employed in a case be disinterested and neither hold or represent an interest adverse to the estate. See In re Hub Business Forms, Inc., 146 B.R. 315 (Bankr.D.Mass.1992). The term “disinterested” is defined in § 101, which prescribes five elements: “Disinterested person” means person that— (A) is not a creditor, an equity security holder, or an insider; (B) is not and was not an investment banker for any outstanding security of the debtor; (C) has not been, within three years before the date of the filing of the petition, an investment banker for a security of the debtor, or an attorney for such an investment banker in connection with the offer, sale, or issuance"
},
{
"docid": "23584408",
"title": "",
"text": "independent judicial responsibility to evaluate professionals’ fees. In re First Software Corp., 79 B.R. 108 (Bankr.D.Mass.1987). “The court ... is itself an expert on the question (of attorney’s fees) and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of testimony of witnesses as to value.” In re WHET, Inc., 61 B.R. 709, 713 (Bankr.D.Mass.1986). TRAVEL TIME Some courts hold that travel time cannot be billed, although special exceptions may be made. E.g., In re Grimes, 115 B.R. 639 (Bankr.D.S.D.1990); In re Carter, 101 B.R. 170 (Bankr.D.S.D.1989); Jungkurth v. Eastern Financial Services, Inc., 87 B.R. 333, 337 (E.D.Pa.1988); In re S.T.N Enterprises, 70 B.R. 823, 837 (Bankr.D.Vt.1987); In re Seneca Oil Co., 65 B.R. 902, 909 (Bankr.W.D.Okla.1986); In re Pacific Express, Inc., 56 B.R. 859 (Bankr.E.D.Cal.1985); In re Four Star Terminals, Inc., 42 B.R. 419 (Bankr.D.Alaska 1984). Others allow for one half the attorney’s hourly rate. In re Environmental Waste Control, 122 B.R. 341 (Bankr.N.D.Ind.1990); In re Ginji Corp., 117 B.R. 983 (Bankr.D.Nev.1990); In re Hogg, 103 B.R. 207 (Bankr.D.S.D.1988); In re Pothoven, 84 B.R. 579, 585 (Bankr.S.D.Iowa 1988); In re Taylor, 66 B.R. 390, 397 (Bankr.W.D.Pa.1986). Still others consider 75% of the attorney’s hourly rate appropriate. In re C & J Oil Co., 81 B.R. 398, 404 (Bankr.W.D.Va. 1987). In re Frontier Airlines, Inc., 74 B.R. 973, 977 (Bankr.D.Colo.1987) held that travel time was compensable because it was reasonable and necessary. Accord In re Cano, 122 B.R. 812 (Bankr.N.D.Ga.1991). Approved, In re Microwave Products of America Inc., 102 B.R. 661 (Bankr.W.D.Tenn.1989). The Court feels that “travel time” is a generic within which different species may be differently treated. Commuting time, between an attorney’s residence and primary place of business — the attorney’s usual office — is charged to the business of life and not to the matters handled upon arrival. Travel from office to court may be just a few moments down the hill from Boston’s financial district, or almost 1,800 air miles from Houston, as is the case in one application before the"
},
{
"docid": "16697486",
"title": "",
"text": "other subsections of 364. Once unavailability of less intrusive credit has been shown and adequate protection found if required, the bankruptcy courts, in applying discretion under section 364(b), (c), and (d) have recognized that their discretion is not unbridled. Acknowledging that Congress, in Chapter 11, delicately balanced the hope of debtors to reorganize and the expectations of creditors for payment, the courts have focused their attention on proposed terms that would tilt the conduct of the bankruptcy case; prejudice, at an early stage, the powers and rights that the Bankruptcy Code confers for the benefit of all creditors; or leverage the Chapter 11 process by preventing motions by parties-in-interest from being decided on their merits. In re Tenny Village Co., 104 B.R. 562, 567-70 (Bankr.D.N.H.1989); In re St. Mary Hospital, 86 B.R. 393, 551, 17 Bankr.Ct.Dec. 685 (Bankr.E.D.Pa.1988); In re Crouse Group, Inc., 71 B.R. 544, 550-51, 15 Bankr.Ct.Dec. 939 (Bankr.E.D.Pa.1987). They recognize that debtors-in-possession generally enjoy little negotiating power with a proposed lender, particularly where the lender has a pre-petition lien on cash collateral. At the same time, however, they permit debtors-in-possession to exercise their basic business judgment consistent with their fiduciary duties. In re Federated Department Stores, Inc., Camp. 555 (WESTLAW, FBKR-FDS database), 1990 Bankr.LEXIS 472 (Bankr. S.D.Ohio 1990); In re Simasko Production Co., 47 B.R. 444, 449, 12 Bankr.Ct.Dec. 1107 (Bankr.D.Colo.1985). Prom these two notions, it might appear that the cases are conflicted. The differences are, however, largely semantic. In Tenny Village, the debtor sought post-petition financing under section 364(d) to be supplied by its principal pre-petition secured lender. After finding that certain pre-existing liens were not adequately protected under section 364(d) and that financing could therefore not be approved, the court added that the arrangement also violated the debtor’s fiduciary duties to the estate and its creditors in that the “Financing Arrangement would pervert the reorga-nizational process from one designed to accommodate all classes of creditors and equity interests to one specially crafted for the benefit of the Bank and the Debtor’s principals who guaranteed its debt.” 104 B.R. at 568. The bank was to effectively"
},
{
"docid": "10181012",
"title": "",
"text": "§ 1125. A hearing was held on March 15, 1985 to consider the FDIC’s request for sanctions against Mr. Dempsey (hereafter “sanctions hearing”). II. Under 11 U.S.C. § 1125(b) a court approved disclosure statement is a prerequisite for solicitation of acceptance or rejection of a plan of reorganization. The disclosure statement is approved when the court, after notice and hearing, finds that it contains “adequate information” as defined in 11 U.S.C. § 1125(a)(1). The written disclosure statement is then distributed to each claimholder or interestholder who will vote on the plan. 11 U.S.C. § 1125(b). The purpose of the disclosure statement is to provide sufficient information to enable a reasonable and typical investor to make an informed judgment about the plan. S.REP. NO. 989, 95th Cong., 2d Sess. 121, reprinted in 1978 U.S. CODE CONG. & AD.NEWS 5787, 5907. While the debtor cannot be expected to unerringly predict the future, the “information to be provided should be comprised of all those factors presently known to the plan proponent that bear upon the success or failure of the proposals contained in the plan.” In re Stanley Hotel, Inc., 13 B.R. 926, 8 BANKR.CT.DEC. (CRR) 35, 5 COLLIER BANKR.CAS.2d (MB) 64 (Bankr.D.Colo.1981). Conclusory allegations or opinions without supporting facts are generally not acceptable. In re Egan, 33 B.R. 672, 11 BANKR.CT.DEC. (CRR) 476 (Bankr.N.D.Ill.1983); In re East Redley Corp., 16 B.R. 429, 8 BANKR.CT.DEC. (CRR) 806 (Bankr.E.D.Pa.1982). Knowledge of the debtor’s financial condition is essential before any informed decision concerning the merits of a plan can be made. A description of available assets and their value is a vital element of necessary disclosure. In re Metrocraft Publishing Services, Inc., 39 B.R. 567, 10 COLLIER BANKR.CAS.2d (MB) 1182 (Bankr.N.D.Ga.1984); See In re A.C. Williams Co., 25 B.R. 173, 9 BANKR.CT.DEC. (CRR) 1239 (Bankr.N.D.Ohio 1982). At the sanctions hearing it was made clear to this court that this is not a case where debtor’s counsel has signed and submitted a Chapter 11 disclosure statement which merely fails the statutory test for adequate information contained in 11 U.S.C. § 1125(a). Rather, this is a case"
},
{
"docid": "12803736",
"title": "",
"text": "Capital Group, the Court, in light of Marathon and the BAA, stated “[t]he issue of constitutional constraint on the ability of the adjunct bankruptcy court to issue final orders ... requires consideration of the nexus between the purpose sought to be achieved through the exercise of Article I power and the matter over which the court is asked to act.” 46 B.R. at 857. With respect to 28 U.S.C. § 157(b)(2)(0), In re American of Ashburn, Inc., 49 B.R. 926, 13 Bankr.Ct.Dec. (CRR) 93 (Bankr.N.D.Ga.1985) is instructive. In that case, again a situation factually similar to the instant proceeding in that corporate assets were being liquidated, the trustee brought an action to recover pre- and post-petition accounts receivable. The court held that the trustee’s complaint was properly before the court and constituted a core proceeding under 28 U.S.C. § 157(b)(2)(0), adding “[a] broad reading of the nonexclusive list of core proceedings found at 28 U.S.C. § 157(b)(2) comports with the Congressional intent to adjudicate such matters ‘inextricably tied to the bankruptcy proceeding in the Bankruptcy Courts.” 49 B.R. 926, 13 Bankr.Ct.Dec. at 94. See also In re DeLorean Motor Co., 49 B.R. 900, 13 Bankr.Ct.Dec. (CRR) 60 (Bankr.E.D.Mich.1985). The court emphasized the facts that the chapter 11 case was in a liquidation posture, the trustee had commenced numerous accounts receivable actions in an effort to generate funds for distribution to the debtor’s creditors and the trustee was in need of a forum to efficiently litigate the various proceedings. Thus, contrary to the Defendants position, ample case law exists to support the proposition that collection of a debtor’s accounts receivable is a core proceeding. See, e.g., In re Franklin Computer, Inc., 50 B.R. 620, 13 Bankr.Ct.Dec. (CRR) 209 (Bankr.E.D.Pa.1985); In re All American of Asburton, Inc., 49 B.R. 926, 13 Bankr.Ct.Dec. (CRR) 93 (Bankr.N.D.GA 1985); In re Baldwin United Corp., 48 B.R. 49 (Bankr.S.D.Ohio 1985). Likewise, contract claims have been determined to involve property interests of the estate, warranting treatment as core proceedings. See, e.g., In re Pied Piper Casuals, 50 B.R. 549, 13 Bankr.Ct.Dec. (CRR) 290 (Bankr.S.D.N.Y. 1985); In re"
},
{
"docid": "18775412",
"title": "",
"text": "that debtor failed to pursue actions against insiders because the committee had already sought to do so and, by its own admission, was the more appropriate party for the task. The Court need not address the merits of the debtor’s arguments concerning standing and estoppel since the Court is entrusted with the responsibility to determine the qualification of debtor’s counsel and the reasonableness of counsel’s compensation independent of objections raised by any party. See, e.g., In re Temp-Way Corp., 95 B.R. 343, 346 (E.D.Pa.1989); In re Nephi Rubber Products Corp., 120 B.R. 477, 483 (Bankr.N.D.Ind.1990); In re Vanderbilt Associates, Ltd., 111 B.R. 347, 353 (Bankr.D.Utah), rev’d on other grounds, 117 B.R. 678 (D.Utah 1990); In re Wiedau’s, Inc., 78 B.R. 904, 907 (Bankr.S.D.Ill.1987); In re GHR Energy Corp., 60 B.R. 52, 65-66 (Bankr.S.D.Tex.1985). See also In re Carrousel Motels, Inc., 97 B.R. 898, 900 (Bankr.S.D.Ohio 1989) (objections to attorney compensation on basis that attorney represented an interest adverse to the bankruptcy estate \"goes to the integrity of the administration of the bankruptcy laws so that it cannot be time bound”). With regard to the remaining allegations of counsel’s conflict of interest, it is clear from the testimony of David Part-ney at his Rule 2004 examination that the Farrell Law Firm represented both him and the debtor during the stock redemption transaction. Representation of the debtor pre-petition is not, in itself, a basis for disqualification of counsel, 11 U.S.C. § 1107(b), and even simultaneous representation of the debtor and its controlling shareholder may be permissible. See, e.g., In re Black Hills Greyhound Racing Ass’n, 154 B.R. at 293; In re Plaza Hotel Corp., 111 B.R. 882, 890 (Bankr.E.D.Cal.), aff'd, 123 B.R. 466 (9th Cir.BAP 1990) (si multaneous representation of a debtor and its controlling shareholder “although not a disqualifying conflict per se, becomes a basis to disqualify counsel when adverse interests either exist or are likely to develop”). However, it is imperative that these relationships be fully disclosed to the Court in the application for employment. Failure to comply with the disclosure requirements of Rule 2014(a) is, by itself, enough to"
},
{
"docid": "16456231",
"title": "",
"text": "marketing aircraft); Matter of Federated Department Stores, Inc., 114 B.R. 501 (Bankr.S.D.Ohio 1990) (financial consultants); In re Providence Television Limited Partnership, 113 B.R. 446 (Bankr.N.D.Ill.1990) (media broker hired to sell television station); In re 222 Liberty Associates, 110 B.R. 196 (Bankr.E.D.Pa.1990) (realtor); In re Phoenix Steel Corp., 110 B.R. 141 (Bankr.D.Del.1989) (workout specialist); In re Microwave Products of America, Inc., 94 B.R. 971 (Bankr.W.D.Tenn.1989) (public relations firm); In re American Int'l Airways, Inc., 69 B.R. 396 (Bankr.E.D.Pa.1987) (financial management consultants); In re Ewing, 54 B.R. 952 (D.Colo.1985) (real estate broker); In re Simasko Production Co., 47 B.R. 444 (D.Colo.1985) (investment broker); In re Malden Mills, Inc., 42 B.R. 476 (Bankr.D.Mass.1984) (management consultants); In re Zeus America Management Consultants, Inc., 27 B.R. 853 (Bankr.N.D.Ohio 1983) (private investigator); In re Morton Shoe Companies, Inc., 22 B.R. 449 (Bankr.D.Mass.1982) (financial expert); In re WFDR, Inc., 22 B.R. 266 (Bankr.N.D.Ga.1982) (management consultant); In re Holiday Mart, Inc., 18 B.R. 212 (Bankr.D.Haw.1982) (architect). But see, Matter of Reda, Inc., 54 B.R. 871, 882 n. 25 (Bankr.N.D.Ill.1985) (insurance adjuster is not a professional person). . The exception for professional persons on salary in 11 U.S.C. § 327(b) does not fit the present situation. Latino is not a salaried employee. Its compensation was based upon a nominal management fee and a 150% rate of return on the salary and wage payments expended. The latter figure represents over 97% of the net proceeds from the arrangement. See, In re Century Investment Fund VII Limited Partnership, 96 B.R. 884 (Bankr.E.D.Wis.1989); In re Park Avenue Partners Limited Partnership, 95 B.R. 605 (Bankr.E.D.Wis.1988). \"By referring to a regularly employed professional person on salary, the Bankruptcy Code envisions an existing department within a company or in-house counsel, employed on salary, who will be helpful to the trustee in handling routine matters incident to normal business activity.” In re Carolina Sales Corp., 45 B.R. 750, 753 (Bankr.E.D.N.C.1985) (management consultant was an independent contractor not a salaried employee). . A lengthy written opinion by the Court in this case describes the entanglements, conflicts, and appearances of impropriety emanating from the three Chapter 11 cases."
},
{
"docid": "23584416",
"title": "",
"text": "is now generally accepted that expenses of photocopying are a chargeable expense of representation of an estate. The per page charge should be noted and should reflect the professional’s actual costs. In re CF & I Fabricators of Utah, Inc., 131 B.R. 474, 494 (Bankr.D.Utah 1991); In re Ginji Corp., 117 B.R. 983, 995 (Bankr.D.Nev.1990). Binding falls into the same category. In re First Software Corp, 79 B.R. 108 (Bankr.D.Mass.1987). OVERTIME; SUPPORT STAFF This Court has recently held that secretarial overtime is overhead. In re Murray, 132 B.R. 808 (Bankr.D.Mass.1991). Absent irresistible time pressures, the Court will echo what clients are alleged to have said: “Why couldn't my work have been done during the day, and someone else’s on overtime?” In Murray this Court also held that “charges for time spent by administrative office support personnel ... are not normally appropriate ... [and] must be covered by the hourly rates of the professionals.” Separate charges for persons sorting files and the like are not allowable. Accord, In re Holthoff 55 B.R. 36 (Bankr.E.D.Ark.1985). COMPUTER ASSISTED RESEARCH There is a division of authority with regard to compensation for computer-assisted research. A majority of courts have found it to be a reimbursable expense. Timberland Design Inc. v. Federal Deposit Ins. Corp., 745 F.Supp. 784, 790 (D.Mass.1990), aff'd sub nom. Timberland Design, Inc. v. First Service Bank for Sav., 932 F.2d 46 (1st Cir.1991); In re Washington Mfg. Co., 101 B.R. 944 (Bankr.M.D.Tenn. 1989); In re Prairie Cent. Ry. Co., 87 B.R. 952 (Bankr.N.D.Ill.1988); In re UNR Industries, 72 B.R. 796 (Bankr.N.D.Ill.1987); In re Wildman, 72 B.R. 700 (Bankr. N.D.Ill.1987); In re Carter Enterprises, 55 B.R. 548 (Bankr.C.D.Cal.1985). The courts who have denied the expense have held it to be overhead. In re Bicoas-tal Corp., 121 B.R. 653 (Bankr.M.D.Fla.1990); In re Florida Brethren Homes, Inc., 97 B.R. 652 (Bankr.S.D.Fla.1989); In re Belknap, Inc., 103 B.R. 842 (Bankr.W.D.Ky.1989); In re Pothoven, 84 B.R. 579 (Bankr.S.D.Iowa 1988); In re Cuisine Magazine, Inc., 61 B.R. 210 (Bankr.S.D.N.Y.1986); In re Bible Deliverance Evangelistic Church, 39 B.R. 768 (Bankr.E.D.Pa.1984). This Court agrees with the language of Timberland Design,"
},
{
"docid": "13934967",
"title": "",
"text": "forms a major part of many fee petitions”. In re Pettibone Corp., 74 B.R. at 303; In re Amatex Corp., 70 B.R. [624,] at 626 [ (Bkrtcy.E.D.Pa.1985) ]. The bankruptcy estate should not bear the cost of compensating each attorney present at an intra-office conference unless counsel can show that the estate benefitted from each attorney’s special area of expertise. In the absence of a showing of the purpose of the conference and why the conference was essential to efficient management of the case, this court will not award full compensation to each attorney present at the conference. In re Amatex Corp., 70 B.R. at 626. The same reasoning applies to duplicative court appearances. Id. See also, In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 583 (Bankr.D.Utah 1985). When more than one attorney appears in court, no fee or a reduced fee should be sought for non-participating counsel. This court will examine the frequency and length of duplicative services in individual cases to determine whether a reduction in compensation sought is appropriate, (citation omitted). TRAVEL TIME Courts are divided on how travel time should be treated. Some courts hold that travel time should be compensated at 50% of the attorney’s normal hourly rate. In re Taylor, 66 B.R. 390 (Bankr.W.D.Pa.1986). However, other courts have refused to discount travel time. In re Frontier Airlines, Inc., 74 B.R. 973 (Bankr.D.Colo. 1987). This court has previously held that travel time should be billed at a reduced rate. In re Microwave Products of America, 104 B.R. 900 (Bankr.W.D.Tenn.1989). EXPENSES All expenses must be adequately documented in order to be reimbursed, and must be incurred by a “professional person” under § 327(a) or § 1103, 11 U.S.C. § 330(a). In re Washington Mfg. Co., 101 B.R. 944 (Bankr.M.D.Tenn.1989). Further, time entries for telephone calls, conferences, research, etc., must indicate the persons involved, and the subject matter. In re Pettibone Corp., 74 B.R. 293 (Bankr.N.D.Ill.1982). The actual cost of photocopying, long-distance telephone charges, postal expense, and travel costs may be reimbursed. Matter of Pothoven, 84 B.R. 579 (Bankr.S.D.Iowa 1988). However, charges which are part of the"
},
{
"docid": "4654344",
"title": "",
"text": "699, 706 (Bankr.E.D.Pa.1987); In re Wiedau’s, Inc., supra; In re Alan I.W. Frank Corp., 71 B.R. 585, 586 (Bankr.E.D.Pa. 1987); In re Shaffer-Gordon Assoc., Inc., 68 B.R. 344, 348-50, 15 C.B.C.2d 1314 (Bankr.E.D.Pa.1986); In re Holthoff, 55 B.R. 36, 42 (Bankr.E.D.Ark.1985); In re American Metals Corp., 49 B.R. 579 (Bankr.D.Kan.1985); In re Liberal Market, Inc., 24 B.R. 653, 661, 9 B.C.D. 1216 (Bankr.S.D.Ohio 1982); In re Seatrain Lines, Inc., 21 B.R. 194 (Bankr.S.D.N.Y. 1982). Other courts have allowed such compensation. In re Wildman, 72 B.R. 700, 710-11, 15 B.C.D. 1189 (Bankr.N.D.Ill.1987); In re S.T.N. Ent., Inc., 70 B.R. 823, 835, 15 B.C.D. 871, 16 C.B.C.2d 1355 (Bankr.D.Vt.1987); In re Vlachos, 61 B.R. 473, 481 (Bankr.S.D.Ohio 1986); In re Union Cartage Co., 56 B.R. 174, 178 (Bankr.N.D.Ohio 1986); In re Baldwin-United, Corp., 45 B.R. 381 (Bankr.S.D.Ohio 1984); In re Rego Crescent Corp., 37 B.R. 1000, 1008 (Bankr.E.D.N.Y.1984) (without explanation); cf, In re United Rockwool, Inc., supra (where the court allowed some compensation despite opining that preparation of a fee application “is more in the nature of a cost of doing business rather than a service rendered for the debtor.”) Initially, we believe that the question is really factual in nature. The policy of strict economy in fee awards in bankruptcy cases, which was the law under the former Bankruptcy Act, no longer exists. See In re Hamilton Hdwr. Co., supra. Instead, the Code reflects a definite policy decision by Congress that attorneys should be compensated the same for their services in bankruptcy cases as in any other field of endeavor. “That spirit of economy has been abandoned under the Code in favor of the new policy that attorneys engaged in bankruptcy cases receive compensation on parity with that received by attorneys performing services in comparable situations.” 2 Collier on Bankruptcy, 11330.05[2][a] (15th ed. 1988). Indeed, the Code specifically says so: “... the court may award to ... a professional person employed under section 327 or 1103 of this title, or to the debtor’s attorney (1) reasonable compensation ... based on the ... cost of comparable services other than in a case"
}
] |
807876 | deciding whether the execution of the search warrant in an allegedly violent manner made the search unreasonable because the evidence would have been discovered whether violence was used or not). Because the police officers initially had probable cause, it is irrelevant how long they seized the Cha residence because the length of the seizure outside the house could never lead to the discovery of the evidence. In a similar vein, because the Chas do not argue the initial entry and “scene check” of their residence was unconstitutional, the witnesses’ testimony derived from this entry provided sufficient probable cause for the warrant. The warrant thus provided an independent source for the evidence, dissipating the taint from the unconstitutional action. See, e.g., REDACTED Thus, the evidence was not excludable on the basis of the fruit of the poisonous tree doctrine. V Our analysis does not end there, however. Although not excludable as fruit of the poisonous tree, the evidence must be suppressed as a direct result of the constitutional violation. United States v. Dass holds that the exclusionary rule is applicable to unreasonably long seizures. 849 F.2d 414, 414 (9th Cir.1988). In that case, we specifically concluded that it is irrelevant whether the evidence is the “product” or “fruit” of the unconstitutional delay: [W]e reject the government’s argument that it did not benefit from the delay. | [
{
"docid": "5798830",
"title": "",
"text": "arrest. The district court denied the motions to suppress based on its conclusion that if all reference to the items seen in plain view by the officers after the initial entry is deleted, Detective Hurst’s affidavit “still contains sufficient untainted facts to establish probable cause for the warrant to issue.” The district court concluded further that “[t]his [untainted] information and the resulting lawful warrant constitute an independent source for the evidence found in Room 227.” In Segura v. United States, 468 U.S. 796, 799, 104 S.Ct. 3380, 3382, 82 L.Ed.2d 599 (1984), the Supreme Court held that a search was valid notwithstanding the fact that an earlier illegal entry had been made on the premises because the warrant was issued “wholly on information known to officers before the entry into the apartment....” The court concluded that the exclusionary rule was inapplicable because the government had discovered the existence of the items described in the search warrant from an independent source. Id. at 805, 104 S.Ct. at 3385. Salas contends that there was no independent source for the issuance of the search warrant. He argues that the officers “had applied for a search warrant and had been refused.” Brief of Appellant Salas, pg 8. This argument mischaracterizes the evidence. The officers did not apply to a magistrate for the issuance of a search warrant prior to the discovery of cocaine on Salas’ person. The record does show that prior to the lawful detention of Salas, a county prosecutor had advised Detective Hurst to continue his surveillance for additional information. Thereafter, the officers’ personal observations including the seizure of cocaine from Salas’ jacket corroborated the information they had received from the employees at Nendel’s Motel. Salas also asserts that Detective Hurst’s affidavit contained tainted evidence that was the fruit of the initial illegal entry. In United States v. Driver, 776 F.2d 807 (9th Cir.1985), we held that, “[t]he warrant may be upheld even where it contains tainted and untainted facts as long as the untainted portions contain a sufficient showing of probable cause to render the warrant valid.” The district court concluded"
}
] | [
{
"docid": "4414041",
"title": "",
"text": "Eichwald. See II Tr. at 94:2-16 (Braun). RELEVANT FOURTH AMENDMENT LAW The Fourth Amendment to the United States Constitution 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. It also commands 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.” Id. Evidence obtained in violation of the Fourth Amendment may be suppressed, but “[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring v. United States, — U.S. —, 129 S.Ct. 695, 702, 172 L.Ed.2d 496 (2009). Thus, “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence,” but “when police mistakes are the result of negligence ..., rather than sys temie error or reckless disregard of constitutional requirements,” suppression is not automatic and “any marginal deterrence” from suppression is often insufficient. Id. at 702, 704. 1. The Independent-Source Doctrine. The exclusionary rule prohibits the introduction of evidence, both tangible and testimonial, that is seized or acquired during an unlawful search. See Murray v. United States, 487 U.S. 533, 536, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). “Under the fruit of the poisonous tree doctrine, the exclusionary rule bars the admission of physical evidence and live testimony obtained directly or indirectly through the exploitation of unconstitutional police conduct.” United States v. Hatfield, 333 F.3d 1189, 1193-94 (10th Cir.2003) (citing Wong Sun v. United States, 371 U.S. 471, 485-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). If police “conduct[ ] unconstitutional searches that acquire! ] information used to obtain [a] search warrant,” then “evidence seized during the later search conducted pursuant to warrant would be inadmissible as fruit of the poisonous tree.” Id. at 1194. When determining whether evidence is fruit of the poisonous tree, a court is to consider whether"
},
{
"docid": "19628565",
"title": "",
"text": "L.Ed.2d 997 (2015). Compare, e.g., United States v. Green, 111 F.3d 515, 522-523 (C.A.7 1997) (holding that discovery of the warrant is a dispositive intervening circumstance where police misconduct was not flagrant), with, e.g., State v. Moralez, 297 Kan. 397, 415, 300 P.3d 1090, 1102 (2013) (assigning little significance to the discovery of the warrant). We now reverse. II A 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.\" Because officers who violated the Fourth Amendment were traditionally considered trespassers, individuals subject to unconstitutional searches or seizures historically enforced their rights through tort suits or self-help. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 625 (1999). In the 20th century, however, the exclusionary rule-the rule that often requires trial courts to exclude unlawfully seized evidence in a criminal trial-became the principal judicial remedy to deter Fourth Amendment violations. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Under the Court's precedents, the exclusionary rule encompasses both the \"primary evidence obtained as a direct result of an illegal search or seizure\" and, relevant here, \"evidence later discovered and found to be derivative of an illegality,\" the so-called \" 'fruit of the poisonous tree.' \" Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). But the significant costs of this rule have led us to deem it \"applicable only ... where its deterrence benefits outweigh its substantial social costs.\" Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (internal quotation marks omitted). \"Suppression of evidence ... has always been our last resort, not our first impulse.\" Ibid. We have accordingly recognized several exceptions to the rule. Three of these exceptions involve the causal relationship between the unconstitutional act and the discovery of evidence. First, the independent source doctrine allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source. See Murray v. United States, 487 U.S."
},
{
"docid": "2538232",
"title": "",
"text": "United States v. Blocker, 104 F.3d 720, 725 (5th Cir.1997). A. Meaux’s Search of the Computer Grosenheider first argues that Meaux’s search of the computer, during which Upgraders staff helped by-pass the password lock, was illegal. At the outset, he rightly concedes that the initial search by Rowan did not violate the Fourth Amendment, which only implicates searches and seizures by governmental agents or those working for them. See United States v. Jacobsen, 466 U.S. 109, 112-14, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984); Blocker, 104 F.3d at 725. He contends, however, that by breaking the password lock, the second search exceeded the scope of the initial private search, and, lacking a warrant, was therefore illegal. We do not reach the merits of this argument, but instead affirm the district court’s determination that the evidence from Grosenheider’s computer is admissible under the “independent source” doctrine. See United States v. Register, 931 F.2d 308, 311 (5th Cir.1991) (refusing to consider whether exigent circumstances justified a warrantless entry because the independent source doctrine applied). The exclusionary rule of the Fourth Amendment generally prohibits the introduction at trial of not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence discovered later that is derivative of an illegality, or constitutes “fruit of a poisonous tree.” Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599 (1984) (citing Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) and Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939)). The primary limit on this rule is that otherwise suppressible evidence will still be admitted if the connection between the alleged illegality and the acquisition of the evidence is “so attenuated as to dissipate the taint.” Nardone, 308 U.S. at 341, 60 S.Ct. at 268; see also Segura, 468 U.S. at 816, 104 S.Ct. at 3391 (rejecting the notion “that evidence is ‘fruit of the poisonous tree’ simply because ‘it would not have come to light but for the illegal actions of"
},
{
"docid": "14203640",
"title": "",
"text": "seize Galaviz, discovery of the gun is not a “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The gun may only be suppressed if its discovery is a “fruit” of the seizure of Galaviz. “[T]he ‘fruit of the poisonous tree’ doctrine ... bars the admissibility of evidence which police derivatively obtain from an unconstitutional search or seizure.” United States v. Williams, 615 F.3d 657, 668 (6th Cir.2010) (quoting United States v. Pearce, 531 F.3d 374, 381 (6th Cir.2008)). Not all evidence the discovery of which shares some causal connection to an unconstitutional seizure should be suppressed, however. The Supreme Court has never h[e]ld that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Hudson v. Michigan, 547 U.S. 586, 592, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (quoting Wong Sun, 371 U.S. at 487-88, 83 S.Ct. 407) (internal quotation marks omitted). Here, the gun was discovered by police officers who arrived at the scene in response to Webber’s call for backup. Those officers observed the gun either while Webber was still searching for Galaviz inside the house, or contemporaneous with the arrest of Galaviz in the basement. They discovered the gun because it was in plain view, and not as a result of anything Galaviz said or anything found on Galaviz’s person after his detention. Although Webber’s pursuit of Galaviz was a but-for cause of the officers’ discovery of the gun, the gun is not a fruit of the seizure as defined by Wong Sun and progeny. C. The Plain-View Exception Although the district court’s order denying Galaviz’s motion to suppress addressed only the Terry issue, we may uphold the denial of the"
},
{
"docid": "22679393",
"title": "",
"text": "and first discovered by the agents the day after the entry, under an admittedly valid search warrant, should have been suppressed. The suppression or exclusionary rule is a judicially prescribed remedial measure and as “with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” United States v. Calandra, 414 U. S. 338, 348 (1974). Under this Court’s holdings, the exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, Weeks v. United States, 232 U. S. 383 (1914), but also evidence later discovered and found to be derivative of an illegality or “fruit of the poisonous tree.” Nardone v. United States, 308 U. S. 338, 341 (1939). It “extends as well to the indirect as the direct products” of unconstitutional conduct. Wong Sun v. United States, 371 U. S. 471, 484 (1963). Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion. The question to be resolved when it is claimed that evidence subsequently obtained is “tainted” or is “fruit” of a prior illegality is whether the challenged evidence was “ ‘come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’” Id., at 488 (citation omitted; emphasis added). It has been well established for more than 60 years that evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is “so attenuated as to dissipate the taint,” Nardone v. United States, supra, at 341. It is not to be excluded, for example, if police had an “independent source” for discovery of the evidence: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of"
},
{
"docid": "8992200",
"title": "",
"text": "Supreme Court adopt a rule that the testimony of a live witness should not be excluded at trial no matter how close and proximate the connection between it and the Fourth-Amendment violation, and stating that “verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case is no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion”), and KY.’s statements were made within hours of the illegal searches, her interview was a result of the deputies’ illegal entry into Christy’s residence, and the United States has not sufficiently demonstrated that her statements in the interview were so attenuated from the illegality as to dissipate the taint of the unlawful conduct. See United States v. Pettigrew, 468 F.3d 626, 634 (10th Cir.2006) (“Accordingly, the exclusionary rule as it applies to the Fourth Amendment is broad and witnesses and evidence (including confessions), no matter how probative, discovered only as a result of a Fourth Amendment violation, must be excluded from evidence.” (citing Wong Sun v. United States, 371 U.S. at 485-86, 83 S.Ct. 407)); United States v. Albert, 579 F.3d at 1197 (stating that, because the statements would not have come to light but for the deputies’ unconstitutional conduct, “the government must prove the ‘evidence sought to be suppressed is not ‘fruit of the poisonous tree,’ ... by demonstrating the evidence ... was so attenuated from the illegality as to dissipate the taint of the unlawful conduct’ ” (citation omitted)); United States v. Maez, 872 F.2d at 1454 (stating that the question is whether the witness’ statements are so attenuated as to dissipate the taint). The Court must thus exclude Christy’s statements and KY.’s statements from the warrants. With this information excluded, the information remaining is that: (i) the Westminster Police Department in California asked the BCSO to perform a welfare check at 2265 Kelly SW in reference to a missing sixteen year-old female — K.Y.; (ii) the Westminster Police Department told BCSO that K.Y. possibly left California with Christy and gave BCSO KY.’s"
},
{
"docid": "4414042",
"title": "",
"text": "disregard of constitutional requirements,” suppression is not automatic and “any marginal deterrence” from suppression is often insufficient. Id. at 702, 704. 1. The Independent-Source Doctrine. The exclusionary rule prohibits the introduction of evidence, both tangible and testimonial, that is seized or acquired during an unlawful search. See Murray v. United States, 487 U.S. 533, 536, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). “Under the fruit of the poisonous tree doctrine, the exclusionary rule bars the admission of physical evidence and live testimony obtained directly or indirectly through the exploitation of unconstitutional police conduct.” United States v. Hatfield, 333 F.3d 1189, 1193-94 (10th Cir.2003) (citing Wong Sun v. United States, 371 U.S. 471, 485-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). If police “conduct[ ] unconstitutional searches that acquire! ] information used to obtain [a] search warrant,” then “evidence seized during the later search conducted pursuant to warrant would be inadmissible as fruit of the poisonous tree.” Id. at 1194. When determining whether evidence is fruit of the poisonous tree, a court is to consider whether the evidence was “come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Segura v. United States, 468 U.S. 796, 804-805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (internal quotations omitted)(alteration in original). Under the independent-source doctrine, evidence that is obtained based upon information unrelated to an unlawful search is not fruit of the poisonous tree. See Segura v. United States, 468 U.S. at 799, 104 S.Ct. 3380 (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)). Evidence therefore need not be excluded under the fruits-of-the-poisonous-tree doctrine if there is an independent source for discovery of the challenged evidence. See id. at 805, 104 S.Ct. 3380. Two Supreme Court cases have considered the operation of the independent-source doctrine in situations where a search warrant is obtained subsequent to an unlawful search. In Segura v. United States, police unlawfully entered an apartment and spotted drug-trafficking paraphernalia in plain view. See 468 U.S. at 801, 104 S.Ct. 3380."
},
{
"docid": "22799181",
"title": "",
"text": "questionable seizures, the government’s actions were not so extreme as to invalidate the otherwise legal aspects of the search. Appellant next argues that the government’s apparent misrepresentation about the red tags invalidates our decision in United States v. Ruhe, supra, upholding the validity of the search of his home. Appellant is wrong, however. Our decision in Ruhe was not dependent upon the presence of the red tags. That decision merely established that the search as a whole was not illegal because the warrant was not so deficient on its face as to preclude good faith reliance upon it. We were not presented with and did not address the admissibility of any particular items. We think it is clear that if the evidence which was supposed to be red tagged was not so identified, then the seizure of such evidence was unconstitutional. But, this conclusion is separate and independent from our previous conclusion that the search of Ruhe’s home was validly conducted in good faith reliance on the warrant. The unconstitutional taint of these seizures did not spread to the trial since the improperly seized evidence was not itself admitted. Finally, Appellant argues that under the Wong Sun “fruit of the poisonous tree” doctrine, see Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the government should not have been allowed to make any references to the improperly seized items at trial or to any other evidence which was obtained as a consequence of the unlawful search. Once again, Appellant’s arguments are unavailing. Generally the exclusionary rule requires the suppression not only of the evidence improperly seized, but “extends as well to the indirect as the direct products of such invasions.” Wong Sun, 371 U.S. at 484, 83 S.Ct. 407. The “fruit of the poisonous tree” doctrine recognizes an exception, however, when the evidence in question would have been available from an independent source: “the facts thus obtained [from an illegal search do not] become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others...."
},
{
"docid": "14097429",
"title": "",
"text": "1868. “When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.” Id. See also Awadallah II, — F.Supp.3d at -, 2002 WL 123478, at *25. Awadallah’s testimony before the' grand jury was undoubtedly the product of an unlawful seizure because the government lacked the statutory authority to detain him under section 3144. 1. The Government’s Argument The government argues that Awadal-lah’s grand jury testimony should not be suppressed because “[it] is not causally connected to his arrest on the material witness warrant.” Gov’t Mem. at 83. According to the government, “ ‘[our] cases make clear that evidence will not be excluded as “fruit” unless the illegality is at least the “but for” cause of the discovery of the evidence.’ ” Id. (quoting Segura v. United States, 468 U.S. 796, 815, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984)). The prosecution asserts that its conduct was not the “but for” cause of Awadallah’s testimony because “[assuming that the Government had not sought a material witness warrant, Awadallah still would have been served with a subpoena to appear before the grand jury in New York, and would have been questioned on the same subjects.” Gov’t Mem. at 83. The government misses the point. In Segura, the Court held that, where the police initially conducted an illegal search and then subsequently searched the same area pursuant to a valid warrant, the “independent source” doctrine permits the admission of evidence discovered for the first time during the second (lawful) search. 468 U.S. at 804, 104 S.Ct. 3380. In doing so, the Court explained that “the exclusionary rule reaches not only ‘primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.’ ” Id. (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939))(emphasis added) (citation omitted). “[I]n the classic independent source situation, information which is received through an illegal source is considered to be cleanly"
},
{
"docid": "14203639",
"title": "",
"text": "he was able to clearly identify him as such in the available light. Webber further conceded that, because the robbery suspect identified in the radio transmissions was a black male or black female, identifying Galaviz as a Hispanic male constituted conclusive information that he was not a suspect in the robbery. See United States v. Jackson, 188 Fed.Appx. 403, 410 (6th Cir.2006) (unpublished) (holding that, even if police had probable cause to stop defendant’s car based on purported similarity to the suspect’s vehicle, they should have immediately released him once they saw that his “physical appearance differed significantly from that of the suspect”). Whether reasonable suspicion was revived by subsequent events, including Galaviz’s failure to heed Webber’s commands to stop, Galaviz’s kicking, banging, and screaming in an attempt to gain entry to the house, and Webber’s lack of clarity as to whether Galaviz forced his way into the house or was permitted to enter by the residents, is a close question we need not reach because, even assuming arguendo that Webber lacked reasonable suspicion to seize Galaviz, discovery of the gun is not a “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The gun may only be suppressed if its discovery is a “fruit” of the seizure of Galaviz. “[T]he ‘fruit of the poisonous tree’ doctrine ... bars the admissibility of evidence which police derivatively obtain from an unconstitutional search or seizure.” United States v. Williams, 615 F.3d 657, 668 (6th Cir.2010) (quoting United States v. Pearce, 531 F.3d 374, 381 (6th Cir.2008)). Not all evidence the discovery of which shares some causal connection to an unconstitutional seizure should be suppressed, however. The Supreme Court has never h[e]ld that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of"
},
{
"docid": "4414043",
"title": "",
"text": "the evidence was “come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Segura v. United States, 468 U.S. 796, 804-805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (internal quotations omitted)(alteration in original). Under the independent-source doctrine, evidence that is obtained based upon information unrelated to an unlawful search is not fruit of the poisonous tree. See Segura v. United States, 468 U.S. at 799, 104 S.Ct. 3380 (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)). Evidence therefore need not be excluded under the fruits-of-the-poisonous-tree doctrine if there is an independent source for discovery of the challenged evidence. See id. at 805, 104 S.Ct. 3380. Two Supreme Court cases have considered the operation of the independent-source doctrine in situations where a search warrant is obtained subsequent to an unlawful search. In Segura v. United States, police unlawfully entered an apartment and spotted drug-trafficking paraphernalia in plain view. See 468 U.S. at 801, 104 S.Ct. 3380. A warrant was later obtained, based upon information that the police had known before the entry, and executed at the apartment. In the meantime, police stayed in the apartment to preserve the scene. Pursuant to the warrant, they later seized the paraphernalia, as well as cocaine, cash, ammunition, and records of drug transactions, none of which had been observed during the unlawful search. See id. Before the Supreme Court was the question whether the evidence that was not in plain view during the unlawful entry should be suppressed. See id. at 802 n. 4, 104 S.Ct. 3380. The Supreme Court held that, because the warrant was based on information obtained before the search, the evidence seized was from an independent source and was not fruit of the poisonous tree. See id. at 813-14, 104 S.Ct. 3380. Thus, whether the entry and occupation of the apartment was unlawful was “irrelevant to the admissibility of the challenged evidence” because of the independent source. Id. at 813, 104 S.Ct. 3380. Finding any connection between the unlawful entry and"
},
{
"docid": "10292216",
"title": "",
"text": "be suppressed. 3. Thomas. Thomas made no statements to the law enforcement officials. THE SEARCH WARRANT Mearns has also moved to suppress the cocaine found in his VW. He argues that his statement to Glanz to the effect that there was cocaine in his vehicle was illegally obtained, that the use of that declaration in Glanz’s affidavit in support of the search warrant tainted the warrant, and that the evidence found in the search must be suppressed as “fruit of the poisonous tree”, under the doctrine of Wong Sun v. United States, supra. In Wong Sun, the defendant’s statements were excluded as fruits of an unlawful entry and unauthorized arrest. The Supreme Court also excluded certain narcotics seized as a result of the illegally obtained declarations where the prosecutor conceded that the drugs wouldn’t have been found without the illegal declaration. However, Wong Sun also pointed out that if there were an “independent source” from which the government learned of the evidence, the exclusionary rule would have no application. The inference from Wong Sun is that even if illegally obtained statements lead to the seizure of evidence, that evidence need not be suppressed if there is an independent source which would have led the police to that evidence anyway. The Third Circuit has applied this principle in the context of tainted affidavits submitted in support of a search warrant application. United States v. Sterling, 369 F.2d 799 (3rd Cir. 1966). When such an affidavit contains unlawfully obtained information, the validity of the warrant and the search depends upon whether the untainted information was sufficient to establish probable cause. As Judge Seitz said in Sterling, at 369 F.2d at 802: . the law is quite clear that the inclusion of illegally obtained evidence does not vitiate a search warrant which is otherwise validly issued upon probable cause reflected in the affidavit and based on proper sources. See also James v. United States, 135 U.S.App.D.C. 314, 418 F.2d 1150, 1151 (1969); United States v. Watts, 176 U.S.App.D.C. 314, 540 F.2d 1093, 1095, n. 2 (1976). Since all the information in the affidavit"
},
{
"docid": "12966763",
"title": "",
"text": "the stop of the defendants was unreasonable at its inception. The Court cannot reconcile certain inconsistencies in Agent Fisher’s testimony with other evidence in the record. Facing such inconsistencies, the Court cannot help but apply the maxim, falsus in uno, falsus in omnibus (false in one thing, false in everything) to his testimony. Accordingly, the Court finds that the stop of the defendants’ vehicle violated their Fourth Amendment right to be free from unreasonable seizures as Agent Fisher did not have probable cause to believe that a traffic violation had been committed. D. FRUIT OF THE POISONOUS TREE Evidence seized as the result of an unconstitutional search is the fruit of the poisonous tree and may not be used as proof against the victim of the search. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Of course, such evidence is not automatically subject to suppression under the exclusionary rule. Brown v. Illinois, 422 U.S. 590, 600, 95 S.Ct. 2254, 2260, 45 L.Ed.2d 416, 425 (1975). A court must decide “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963) (quotation omitted). The government has the burden to show that the evidence seized is not the fruit of the poisonous tree. United States v. Twilley, 222 F.3d 1092, 1097 (9th Cir.2000). The taint of illegality may be purged if the evidence would have been inevitably discovered absent a connection to the underlying illegality, Nix v. Williams, 467 U.S. 431, 448, 104 S.Ct. 2501, 2511, 81 L.Ed.2d 377, 390 (1984), if it were discovered by an independent source, or if the discovery of the evidence has “ ‘become so attenuated as to dissipate the taint.’ ” Wong Sun, 371 U.S. at 487, 83 S.Ct. at 417, 9 L.Ed.2d at 455 (citation omitted). The government has not shown nor does it argue"
},
{
"docid": "23556591",
"title": "",
"text": "situation because they are drafted specifically to address circumstances in which an individual’s DNA was placed in the database on the basis of a conviction or arrest,” I agree with the district court that “the construction of the statute strongly suggests that Congress and the Maryland legislature respected the privacy interest of those individuals never convicted for qualifying offenses, and did not intend for ordinary citizens’ or victims’ DNA to be included in the database.” Id. In addition, unlike the constitutionally violative conduct at issue in Herring, the conduct in this case is not “attenuated” from the discovery of Davis’s identity as the source of the DNA recovered from the scene of the Schwindler murder; the cold hit which led to Davis’s arrest was a direct result of the seizure and search of his clothing and the subsequent extraction, analysis and retention of his DNA profile. Cf. Hudson, 547 U.S. at 592, 126 S.Ct. 2159 (exclusionary rule inapplicable where violation of the knock and announce rule was not but-for cause of obtaining evidence pursuant to search warrant). Given that the cold hit supplied the sole probable cause for the search warrant leading to the known DNA match, the causal connection required to invoke the exclusionary rule is clearly present in this case. As we recognized in United States v. Oscar-Torres, 507 F.3d 224 (4th Cir.2007), application of the exclusionary rule is the “usual remedy” where evidence of identity is derived from unlawful searches and seizures: Indisputably, suppression of evidence obtained during illegal police conduct provides the usual remedy for Fourth Amendment violations. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Courts will also suppress evidence that is the indirect product of the illegal police activity as “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Of course, not all evidence that “would not have come to light but for the illegal actions of the police” is suppressible as fruit of the poisonous tree. Id. Rather, the critical inquiry is “whether,"
},
{
"docid": "23599039",
"title": "",
"text": "support for our holding, we note that the affiant for one of the 1983 warrants crossed-out and initialed the phrase “but not limited to [the following persons],” indicating that he knew it was overbroad. Search Warrant for 1065 Wick-ham Drive, Morago, California at 2. . We also reject as meritless Washington’s claim that he is entitled to a Franks hearing because Agent Vessel failed to state in the affidavit that he had participated in the search of Washington’s residence by the Oakland officers. The fact that Vessel participated in the local search is irrelevant to the question whether there was probable cause for the federal agents to search the residence. . Washington also contends that the four 1983 federal warrants were invalid as \"fruits of the poisonous tree,” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939), in that they were based entirely on evidence obtained under invalid warrants executed in 1981. The government maintains that there are independent sources for the 1983 warrants. Because the district court did not find that the 1981 \"trees” were poisoned, it did not resolve the fruits issue. On remand, the district court should determine whether any of the 1983 search was the fruit of searches conducted pursuant to the invalid portions of the 1981 federal warrant, whether independent grounds in fact existed, or whether any \"taint” from any original illegality had dissipated. See Wong Sun v. United States, 371 U.S. 471, 491-92, 83 S.Ct. 407, 419-20, 9 L.Ed.2d 441 (1963); Nardone, 308 U.S. at 341, 60 S.Ct. at 268; see also Brown v. Illinois, 422 U.S. 590, 609, 95 S.Ct. 2254, 2264, 45 L.Ed.2d 416 (1975) (Powell, J. concurring) (\"The notion of the ‘dissipation of the taint' attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost”). . We review the district court’s limitation of the scope of cross-examination for an abuse of discretion. United States v. McClintock, 748 F.2d 1278, 1289 (9th Cir.1984), cert. denied,"
},
{
"docid": "23096173",
"title": "",
"text": "tree.” This doctrine requires the exclusion of tangible evidence seized during an unlawful search, and derivative evidence, both tangible and testimonial, acquired as a result of the unlawful search. Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441 (1963); Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599 (1984). The issues before us are narrowed, for the government assumes for purposes of this appeal, as it did in the district court, that the initial entry violated Herrold’s Fourth Amendment rights. Thus, if the validity of the search and seizure was dependent on the legality of that entry, the evidence would have to be suppressed. However, the government contends that the “inevitable discovery” doctrine applies and that there was a valid basis independent of the original entry for the search warrant. Therefore, in its view the exclusionary rule does not require suppression of evidence discovered during either the original entry or the later search because the evidence inevitably would have been discovered under the valid warrant. While the record is not absolutely clear as to what happened to the contraband between the time of the original entry and the execution of the warrant, we believe that except for the gun the evidence observed during the first entry was seized during the second search. Furthermore, we will treat the district court’s order as suppressing all the evidence seized in both entries, as we are satisfied that this was the court’s intent. B. TAINTED WARRANTS: Although Herrold’s “fruit of the poisonous tree” argument has superficial appeal in view of the original wrongful entry, it is flawed for the reasons set forth in United States v. Johnson, 690 F.2d 60 (3d Cir.1982), cert. denied, 459 U.S. 1214, 103 S.Ct. 1212, 75 L.Ed.2d 450 (1983). There, the government appealed from a district court order suppressing evidence discovered pursuant to a search warrant which had been issued partly on the basis of an affidavit which included information about evidence seized during an unlawful search. We held that, “even assuming that some factual averments"
},
{
"docid": "22679409",
"title": "",
"text": "or related in any way to the initial entry into petitioners’ apartment; the information came from sources wholly unconnected with the entry and was known to the agents well before the initial entry. No information obtained during the initial entry or occupation of the apartment was needed or used by the agents to secure the warrant. It is therefore beyond dispute that the information possessed by the agents before they entered the apartment constituted an independent source for the discovery and seizure of the evidence now challenged. This evidence was discovered the day following the entry, during the search conducted under a valid warrant; it was the product of that search, wholly unrelated to the prior entry. The valid warrant search was a “means sufficiently distinguishable” to purge the evidence of any “taint” arising from the entry. Wong Sun, 371 U. S., at 488. Had police never entered the apartment, but instead conducted a perimeter stakeout to prevent anyone from entering the apartment and destroying evidence, the contraband now challenged would have been discovered and seized precisely as it was here. The legality of the initial entry is, thus, wholly irrelevant under Wong Sun, supra, and Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920). Our conclusion that the challenged evidence was admissible is fully supported by our prior cases going back more than a half century. The Court has never held that evidence is “fruit of the poisonous tree” simply because “it would not have come to light but for the illegal actions of the police.” See Wong Sun, supra, at 487-488; Rawlings v. Kentucky, 448 U. S. 98 (1980); Brown v. Illinois, 422 U. S. 590, 599 (1975). That would squarely conflict with Silverthome and our other cases allowing admission of evidence, notwithstanding a prior illegality, when the link between the illegality and that evidence was sufficiently attenuated to dissipate the taint. By the same token, our cases make clear that evidence will not be excluded as “fruit” unless the illegality is at least the “but for” cause of the discovery of the evidence. Suppression is"
},
{
"docid": "22679408",
"title": "",
"text": "the occupation, were under arrest and in the custody of the police throughout the entire period the agents occupied the apartment. The actual interference with their possessory interests in the apartment and its contents was, thus, virtually nonexistent. Cf. United States v. Van Leeuwen, 397 U. S. 249 (1970). We are not prepared to say under these limited circumstances that the seizure was unreasonable under the Fourth Amendment. V Petitioners also argue that even if the evidence was not subject to suppression as primary evidence “seized” by virtue of the initial illegal entry and occupation of the premises, it should have been excluded as “fruit” derived from that illegal entry. Whether the initial entry was illegal or not is irrelevant to the admissibility of the challenged evidence because there was an independent source for the warrant under which that evidence was seized. Exclusion of evidence as derivative or “fruit of the poisonous tree” is not warranted here because of that independent source. None of the information on which the warrant was secured was derived from or related in any way to the initial entry into petitioners’ apartment; the information came from sources wholly unconnected with the entry and was known to the agents well before the initial entry. No information obtained during the initial entry or occupation of the apartment was needed or used by the agents to secure the warrant. It is therefore beyond dispute that the information possessed by the agents before they entered the apartment constituted an independent source for the discovery and seizure of the evidence now challenged. This evidence was discovered the day following the entry, during the search conducted under a valid warrant; it was the product of that search, wholly unrelated to the prior entry. The valid warrant search was a “means sufficiently distinguishable” to purge the evidence of any “taint” arising from the entry. Wong Sun, 371 U. S., at 488. Had police never entered the apartment, but instead conducted a perimeter stakeout to prevent anyone from entering the apartment and destroying evidence, the contraband now challenged would have been discovered and"
},
{
"docid": "22739092",
"title": "",
"text": "danger, and we hold that the protective sweep of the house — and the location and eventual seizure of Scroggins’s firearms in plain view — was permissible. Our rulings to this point require affirmance of the district court’s refusal to suppress the firearms and ammunition clip, and Scroggins’s initial statements concerning them. The Fourth Amendment exclusionary rule operates to suppress only evidence derived from a Fourth Amendment violation. “Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion,” Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (emphasis added), as is “evidence later discovered and found to be derivative of any illegality or ‘fruit of the poisonous tree.’ ” Id. (citations and internal quotation marks omitted). This “fruit of the poisonous tree” doctrine is limited to evidence “derived from the exploitation of an illegal search or seizure.” United States v. Dortch, 199 F.3d 193, 200 (5th Cir.1999) (emphasis added). If there is no causal connection, the exclusionary rule does not apply. See, e.g., United States v. Sharpe, 470 U.S. 675, 683, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (“It is not necessary for us to decide whether the length of Sharpe’s detention was unreasonable, because that detention bears no causal relation to Agent Cooke’s discovery of the Marihuana.”) Here, the officers discovered the ammunition clip, elicited the location of the related firearm, and located that and another firearm in plain view, all in connection with what we have held to be a constitutionally permissible protective sweep and frisk. c. Wallet-search Scroggins also asserts that DUSM Fomby impermissibly seized and searched his wallet, and thereby discovered his identity. Scroggins’s counsel conceded at oral argument that the wallet-search bore no causal relationship to the discovery of the firearms, but proposed that the district court should have suppressed Scroggins’s status as a felon, which came to light based on investigation of his identity as ascertained in the wallet-search. We conclude that the seizure of the wallet was permissible in connection with the frisk and protective sweep. DUSM Fomby testified that"
},
{
"docid": "23036568",
"title": "",
"text": "by probable cause is not invalidated as a pretext arrest by the previous occurrence of probable cause, even if the search uncovers evidence that leads to an indictment for a different crime. The police delay in arresting Brook-ins and in searching his Jaguar was valid hnd was not “foreclosed if a warrant was not obtained at the first practicable moment” because probable cause and exigent circumstances existed at the time of the arrest and the automobile’s seizure. Cardwell v. Lewis, 417 U.S. at 595, 94 S.Ct. at 2472. Accord, United States v. Mitchell, 538 F.2d at 1233. Brookins’ arrest for license violations and the inventory search of his Jaguar were valid. III. EXCEPTIONS TO THE EXCLUSIONARY RULE. Brookins argues, second, that the police learned of the existence and identity of Holt through the illegal interrogation, and that Holt’s testimony should have been excluded as the tainted fruit of this poisoned tree. We reject this contention on two grounds: (1) his testimony was attenuated from the illegal police conduct (Part IV infra) and (2) the witness would otherwise have been discovered through ordinary police investigation (Part V infra). The exclusionary rule bars evidentiary “fruit” obtained “as a direct result” of an illegal search or an illegal coercive interrogation. Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). Accord, United States v. Cruz, 581 F.2d 535, 537-38 (5th Cir. 1978) (en banc). Its bar only extends from the “tree” to the “fruit,” however, if the fruit is sufficiently connected to the illegal tree: We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. at 487-88, 83 S.Ct. at 417, quoting"
}
] |
324124 | is terminated in violation of particular conditions stated by the parties (Donahue v. Rockford Showcase & Fixture Co., 87 Ill.App.2d 47, 230 N.E.2d 278 (2nd Dist. 1967); and see cases discussed supra relating to Count II); and (3) “Under certain circumstances, a clear and definite oral agreement for permanent employment based on sufficient consideration may be enforced” even where the agreement does not mention a definite term. Titchener v. Avery Coonley School, 39 Ill.App.3d 871, 350 N.E.2d 502, 507 (2nd Dist.1976). “Sufficient consideration” means consideration in addition to the mere performance of regular services required by the employment agreement itself. Ryan v. J.C. Penney Co., Inc., 627 F.2d 836, 837 (7th Cir.1980) (applying Indiana law). Gordon cites REDACTED for the proposition that though consideration in addition to the mere performance of regular services is required, see Ryan v. J.C. Penney Co., Inc., supra, the fact that Gordon expended $8,410 in equipping an office in his home shows consideration in addition to the performance of regular services. Gordon has cited Allied for a proposition which does not support the theory presented in Count VI. In Allied, the plaintiff was given an exclusive wholesale distributorship by the defendant covering 85 counties in Virginia. The agreement had no fixed duration. In four years the plaintiff spent large sums to increase the number of dealers carrying the defendant’s products from four or five in 1949 to more than 100 in | [
{
"docid": "13058155",
"title": "",
"text": "PRETTYMAN, Circuit Judge. Our appellant, in this litigation called simply “Allied”, is a business concern of Richmond, Virginia, which, in addition to a retail sales business in farm and garden equipment, held a number of distributor franchises for that equipment. Our appellee, called herein simply “Weber”, is a manufacturer of such equipment. In the summer of 1949 the two concerns made an arrangement by which Weber gave Allied a wholesale distributorship on an exclusive basis in 85 counties in Virginia. It was understood that Allied would develop a distribution system throughout this territory, and it proceeded to do so. It increased the number of dealers in Weber products from four or five in 1949 to over a hundred in 1953. Allied says that in doing so it expended large sums of money. In the latter part of 1952 Allied contemplated an enlargement of its facilities which would require it to enter upon a lease for a period of fifteen years at a rental of $500 a month. The lessor desired some assurances as to the duration of Allied’s franchises. Allied wrote Weber upon the subject and asked for a letter “setting forth the intended permanency of our franchise with you.” In response Weber wrote in somewhat vague fashion but saying in part: “I know that your thinking and ours coincides in that we are all interested in building Choremaster (a Weber product trade name) year after year. That is exactly what you have done, and I wanted to take this opportunity to express my appreciation for your splendid cooperation. With the rapid expansion of the Choremaster line, i. e., tillers, mowers, we feel that our volume, and that of our distributors, should grow from year to year in the future. I hope that we may have the pleasure of many more years of pleasant, profitable association.” Allied exhibited the foregoing letter to the intended lessor, and the lease was executed. In September of 1953 Allied considered adding to its lines a cultivator made by the Quick Manufacturing Company. Weber considered this cultivator to be in competition with its product. Representatives"
}
] | [
{
"docid": "9538895",
"title": "",
"text": "can be inferred regarding future employment. Second, the teacher claimed she gave up a secure employment position, while Gordon alleges he spent $8,410 for general office supplies. If the detrimental reliance in Titchener was not a sufficient substitute for consideration, then the negligible amount complained of by Gordon cannot be so either. The second Illinois case which is determinative is Heuvelman v. Triplett Electrical Instrument Co., 23 Ill.App.2d 231, 161 N.E.2d 875 (1st Dist.1959). Heuvelman, a case with facts remarkably similar to those involved here, featured an oral agreement with no specified duration calling for the plaintiff to operate as a regional sales representative for the sale of defendant’s electrical and radio equipment. The plaintiff claimed that he had been offered a 25% interest if he would join a competitor’s business, but that the president of the defendant told him that their arrangement was a permanent one. Some years later the plaintiff was fired. The appellate court affirmed the grant of summary judgment for the defendant on the grounds that as a matter of law no adequate consideration was shown, and that to support such an action there had to be “definite and certain mutual promises” of permanent employment. Id 161 N.E.2d at 878. Just as in Heuvelman, both requirements are missing from Gordon’s Count VI. Gordon attempts to distinguish Heuvelman and Titchener. He argues that since these cases were decided on motions for summary judgment rather than dismissals of the complaints for failure to state causes of action, they are not precedent for this motion brought under Fed.R.Civ.P. 12(b)(6). Gordon is incorrect. While these cases do deal with summary judgment motions,'the courts decided that as a matter of law the actions could not proceed. Gordon has not alleged an oral promise (as in Heuvelman and Titchener) which would require discovery for the resolution of one branch of the two branch test: whether the agreement was “clear and definite.” Instead, he has presented to the Court as an exhibit to his complaint the communication on which he depends. Not only is it not “clear and definite” — it says nothing"
},
{
"docid": "9538891",
"title": "",
"text": "consideration may be enforced” even where the agreement does not mention a definite term. Titchener v. Avery Coonley School, 39 Ill.App.3d 871, 350 N.E.2d 502, 507 (2nd Dist.1976). “Sufficient consideration” means consideration in addition to the mere performance of regular services required by the employment agreement itself. Ryan v. J.C. Penney Co., Inc., 627 F.2d 836, 837 (7th Cir.1980) (applying Indiana law). Gordon cites Allied Equipment Co. v. Weber Engineered Products, 237 F.2d 879 (4th Cir.1956) (interpreting Virginia law), for the proposition that though consideration in addition to the mere performance of regular services is required, see Ryan v. J.C. Penney Co., Inc., supra, the fact that Gordon expended $8,410 in equipping an office in his home shows consideration in addition to the performance of regular services. Gordon has cited Allied for a proposition which does not support the theory presented in Count VI. In Allied, the plaintiff was given an exclusive wholesale distributorship by the defendant covering 85 counties in Virginia. The agreement had no fixed duration. In four years the plaintiff spent large sums to increase the number of dealers carrying the defendant’s products from four or five in 1949 to more than 100 in 1953. Also, the plaintiff entered into a 15 year lease in 1953 at the rate of $500/month to allow it to continue to perform under its agreement with the defendant, and this was done with the defendant’s knowledge. Late in 1953, the defendant terminated the agreement. Gordon is correct that Allied is a case where the consideration included substantial capital expenditures in addition to the performance of services. However, even if this Court were to equate the huge capital expenditures of the Allied plaintiff with Gordon’s $8,410 acquisition of telephones and office supplies to be used in his home, Allied provides no support. In that case the issue was not whether the expenditure of funds was sufficient consideration to support a permanent contract: the issue was whether the plaintiff was entitled to the continuation of the distributorship agreement for a reasonable period of time to allow it to recoup its expenditures made in"
},
{
"docid": "10861637",
"title": "",
"text": "a claim since [plaintiff] provided no additional independent consideration.”); Shannon v. Bepko, 684 F.Supp. at 1478 (finding that “Indiana courts have been unequivocal in their rejection of alleged property rights based on employee handbooks”); Rice v. Rent-A-Center of America, Inc., 664 F.Supp. 428, 426-27 (N.D.Ind.1987) (applying Indiana law and finding that the employer’s operations manual was not an enforceable employment contract since it neither contained an identifiable term of employment nor was supported by “any separate consideration beyond [the plaintiffs] mere promise to render services”); Stack v. Allstate Ins. Co., 606 F.Supp. at 475 (similar); Tri-City Comprehensive Community Mental Health Ctr., Inc. v. Franklin, 498 N.E.2d 1303, 1305 (Ind.Ct.App.1986) (rejecting plaintiffs claim that an employee handbook without a definite tenure of service created a unilateral contract, finding that the “courts of this state have rejected [contract] arguments based upon the existence of employee handbooks which set out certain procedures to be followed in disciplining or terminating employees”); Hostettler v. Pioneer Hi-Bred Int’l, Inc., 624 F.Supp. 169, 172 (S.D.Ind.1985) (under Indiana law, “in the absence of a promise for employment for a definite period of time, the existence or non-existence of any provision of the employee handbook is immaterial”); Mead Johnson & Co. v. Oppenheimer, 458 N.E.2d 668, 671 (Ind.Ct.App.1984) (“Employee handbooks are immaterial without an enforceable agreement between the employer and employee of employment for a definite duration.”); Ryan v. J.C. Penney Co., Inc., 627 F.2d 836, 836-38 (7th Cir.1980) (“Indiana law is settled without a promise of employment for a definite term or consideration beyond services rendered, no enforceable employment contract is created.”) ; Campbell v. Eli Lilly & Co., 413 N.E.2d 1054, 1062-63 (Ind.Ct.App.1980) (recognizing Kresge and holding that personnel manual did not create an enforceable covenant); cf. Seco Chems., Inc. v. Stewart, 169 Ind.App. 624, 349 N.E.2d 733, 737-38 (1976) (although an employee manual was not at issue, the court held that a unilateral employment contract was formed when a discharged employee both had agreed to work for the employer for a fixed period of time and had provided independent adequate consideration for the contract by abandoning"
},
{
"docid": "9538894",
"title": "",
"text": "was renewed by the school for several years, but eventually she was fired. The plaintiff “stated that before she agreed to accept the offer defendant Malaeh [the school’s headmaster] told her ‘Your future is here at Avery Coonley and I hope it will be for many years to come.’ ” Id. 350 N.E.2d at 506. The court accepted the plaintiff’s version of the conversation as being true for purposes of deciding the motion for summary judgment, but found that neither was there a clear and definite oral agreement for permanent employment, nor did there exist sufficient consideration to support the defendant’s promise: the fact that the plaintiff gave up a tenured position did not show “a special bargained for detriment to plaintiff as consideration for the alleged promise.” Id. 350 N.E.2d at 507. Gordon’s case is a good deal weaker than the plaintiff’s case in Titchener. There, the plaintiff alleged a promise which mentioned future employment for “many years to come.” Here, the letter on which Gordon relies mentions nothing about the future, and nothing can be inferred regarding future employment. Second, the teacher claimed she gave up a secure employment position, while Gordon alleges he spent $8,410 for general office supplies. If the detrimental reliance in Titchener was not a sufficient substitute for consideration, then the negligible amount complained of by Gordon cannot be so either. The second Illinois case which is determinative is Heuvelman v. Triplett Electrical Instrument Co., 23 Ill.App.2d 231, 161 N.E.2d 875 (1st Dist.1959). Heuvelman, a case with facts remarkably similar to those involved here, featured an oral agreement with no specified duration calling for the plaintiff to operate as a regional sales representative for the sale of defendant’s electrical and radio equipment. The plaintiff claimed that he had been offered a 25% interest if he would join a competitor’s business, but that the president of the defendant told him that their arrangement was a permanent one. Some years later the plaintiff was fired. The appellate court affirmed the grant of summary judgment for the defendant on the grounds that as a matter of law"
},
{
"docid": "14944627",
"title": "",
"text": "the end of our inquiry. Taylor must also allege that the contract was supported by adequate consideration. Again, the Illinois cases present an array of analyses, regarding the conditions under which relinquishing present employment or alternative job offers constitutes adequate consideration. Additional guidance from the Illinois Supreme Court is sorely needed. At the outset, we note that the mere exchanging of a union job for a nonunion position within the same company is considered incidental to accepting the new position and, absent more, does not provide adequate consideration to form a binding contract. Koch, 124 Ill.Dec. at 465-66, 529 N.E.2d at 285-86. In Koch the court found that: The plaintiff here ... did not give up anything of value when relinquishing his position in exchange for an alleged union contract. The plaintiff in this case simply examined the union and non-union jobs and elected to accept the non-union supervisory position. He did not give up anything of value. His action did not provide sufficient consideration to support his alleged oral contract with [the defendant]. Id. at 465, 529 N.E.2d at 285; see also Tol-mie, 930 F.2d at 582 (stating, following Koch, with respect to individual who left position covered by union collective bargaining agreement to accept managerial position, that simply forgoing union position was not adequate consideration). These eases make clear that, absent special circumstances, the mere relinquishment of a prior position, which must be given up in order to accept the new offer, will not support anything more than an at-will relationship. This does not end the inquiry, however. The Koch rule may be rendered inapplicable by the presence of certain circumstances in the bargaining process. The Illinois courts have recognized that, in certain cases, foregoing other employment is not merely incidental to accepting a new position. It appears that, if the employee’s forbearance is a “specially bargained for detriment,” see Titchener v. Avery Coonley Sch., 39 Ill.App.3d 871, 350 N.E.2d 502, 507 (1976), or causes the employee to suffer a “particular detriment,” see Heuvelman v. Triplett Elec. Instrument Co., 23 Ill.App.2d 231, 161 N.E.2d 875, 877-78 (1959), the"
},
{
"docid": "9538892",
"title": "",
"text": "sums to increase the number of dealers carrying the defendant’s products from four or five in 1949 to more than 100 in 1953. Also, the plaintiff entered into a 15 year lease in 1953 at the rate of $500/month to allow it to continue to perform under its agreement with the defendant, and this was done with the defendant’s knowledge. Late in 1953, the defendant terminated the agreement. Gordon is correct that Allied is a case where the consideration included substantial capital expenditures in addition to the performance of services. However, even if this Court were to equate the huge capital expenditures of the Allied plaintiff with Gordon’s $8,410 acquisition of telephones and office supplies to be used in his home, Allied provides no support. In that case the issue was not whether the expenditure of funds was sufficient consideration to support a permanent contract: the issue was whether the plaintiff was entitled to the continuation of the distributorship agreement for a reasonable period of time to allow it to recoup its expenditures made in alleged reliance on the defendant’s promises. In Count VI Gordon does not seek the continuation of his employment for a reasonable period of time to allow him to recoup his $8,410 investment. Instead, he wants the Court to find that his period of employment is permanent. Allied supports no such cause of action. Further, Plaskitt v. Black Diamond Trailer Company, 209 Va. 460, 164 S.E.2d 645 (Va.1968), does not support even the limited result of Allied. Plaskitt (also applying Virginia law) distinguished Allied in holding that plaintiffs, who had acted for two years as the exclusive railway sales agents for the defendant prior to being terminated, and who spent more in expenses than they made in commissions for that period, had no cause of action to recover even the reasonable value of their services and their out-of-pocket expenses. Two Illinois cases determine the issue presented by Count VI. In Titchener, supra, a teacher left a tenured position at one school to take an appointment at the defendant school. She received a one year appointment which"
},
{
"docid": "9538875",
"title": "",
"text": "Illinois court would reach on these facts. Since Gordon was an at will employee, the duty to deal in good faith was appended to nothing which had independent life. Therefore no cause of action predicated only on the good faith principle may stand, and Count I is dismissed. Count II Gordon alleges in Count II that it was “Matthew Bender’s policy and practice ... to condition its sales representatives’ continued employment on ‘acceptable sales performance’ ” (para. 17). He refers to a letter (Ex. D, attached to the complaint) from Matthew Bender to Gordon placing him on probationary status. This letter states that if Gordon meets his goals, he will be “restored to the same status of acceptable sales performance as other Matthew Bender sales representatives.” Gordon alleges that this letter created a contract for continuous employment conditioned upon acceptable sales performance, which Matthew Bender breached by firing him even though he met or exceeded the requirement of acceptable sales performance. Matthew Bender has moved to dismiss Count II on a variety of grounds, including: (1) this was a contract terminable at will, and therefore Gordon’s discharge is not actionable; (2) the contract lacks mutuality and therefore is not actionable; (3) the oral contract is unenforceable under the statute of frauds since it is for an indefinite period. Since the Court finds that this was a contract terminable at will, the other arguments will not be addressed. Gordon claims that though this was a contract for no definite period, it was not a contract without terms governing its duration. Gordon’s length of employment would depend on his “satisfactory performance” or “acceptable sales performance.” Therefore, the argument goes, so long as the condition of acceptable performance was being met — and this is a fact issue which precludes the granting of a motion to dismiss, since the Court must accept the plaintiff’s allegations as true — the contract could not be terminated. See Donahue v. Rockford Showcase & Fixture Co., 87 Ill. App.2d 47, 230 N.E.2d 278 (2nd Dist.1967) (contract of employment with no definite period not an employment at will;"
},
{
"docid": "12642108",
"title": "",
"text": "91 (1978); Long v. Arthur Rubloff & Co., 27 Ill.App.3d 1013, 327 N.E.2d 346 (1978). There appear to be three exceptions to the general rule. First, a termination at will is not allowed or upheld where the termination contravenes public policy. Palmateer v. International Harvester Co., 85 Ill.2d 124, 128, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981). Second, termination at will is not allowed where the termination is in violation of particular conditions stated by the parties. Donahue v. Rockford Showcase and Fixture Co., 85 Ill.2d 47, 230 N.E.2d 278 (1967). Finally, under certain circumstances a clear and definite oral agreement for permanent employment may be enforced where sufficient consideration is present. Martin v. Federal Life, supra, 65 Ill.Dec. at 148, 440 N.E.2d at 1003. Plaintiff has argued that his termination contravened the public policy exception, since it was based on his age, and that he gave sufficient consideration in the form of moving from Michigan to Illinois in exchange for the promise of employment, to fit within the third exception. Since I have already ruled as a matter of law the plaintiff has failed to establish a case of age discrimination, the public policy argument must also fall. If there is no age discrimination, it is difficult to see how there can be a violation of public policy. The issue of sufficiency of consideration, that is more difficult. In Martin the plaintiff was employed by the defendant insurance company, and a competing insurance company offered Martin a job, and he intended to accept that offer. In response to that information, plaintiffs employer offered him lifetime employment. Martin turned down the competing company and remained with his employer, in reliance on the offer of permanent employment. On those facts the Illinois Court of Appeals held that the plaintiffs refusal of the competing offer was sufficient consideration to establish a contract for permanent employment. Mr. Kittredge argues by moving his family from Michigan to Illinois, he, like the plaintiff in Martin, gave sufficient consideration to establish a contract for permanent employment, or at least something more than an employment contract terminable"
},
{
"docid": "12642107",
"title": "",
"text": "that plaintiff was offered the job of operations manager and an opportunity for promotion depending on his performance as the operations manager. Defendant argues that, even if the contract was as Kittredge describes, there is still no cause of action, because plaintiff’s contract was for an indefinite term of employment; that is, “at will,” and that Par ker was free to terminate him at any time, with or without cause. It has been agreed that substantive law of Illinois applies to the contract issues of this case. The plaintiff maintains that under Illinois law oral contracts for employment will be upheld where the employee is given some additional bargained-for consideration. See Martin v. Federal Life Insurance, 109 Ill.App.3rd 596, 65 Ill.Dec. 143, 440 N.E.2d 998 (1982). In general, under Illinois law, an “at will” employment is one which has no specific duration, and such a relationship is terminable at will by either the employer or the employee with or without cause. Criscione v. Sears, Roebuck & Co., 66 Ill.App.3d 664, 23 Ill.Dec. 455, 384 N.E.2d 91 (1978); Long v. Arthur Rubloff & Co., 27 Ill.App.3d 1013, 327 N.E.2d 346 (1978). There appear to be three exceptions to the general rule. First, a termination at will is not allowed or upheld where the termination contravenes public policy. Palmateer v. International Harvester Co., 85 Ill.2d 124, 128, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981). Second, termination at will is not allowed where the termination is in violation of particular conditions stated by the parties. Donahue v. Rockford Showcase and Fixture Co., 85 Ill.2d 47, 230 N.E.2d 278 (1967). Finally, under certain circumstances a clear and definite oral agreement for permanent employment may be enforced where sufficient consideration is present. Martin v. Federal Life, supra, 65 Ill.Dec. at 148, 440 N.E.2d at 1003. Plaintiff has argued that his termination contravened the public policy exception, since it was based on his age, and that he gave sufficient consideration in the form of moving from Michigan to Illinois in exchange for the promise of employment, to fit within the third exception. Since I have already"
},
{
"docid": "8922420",
"title": "",
"text": "Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). With these factors in mind, we review LaScola’s claims. Breach of Employment Contract In Count V of the first amended complaint, LaScola contended that US Sprint breached its employment contract with him by firing him without the “just cause” LaScola claims was necessary. The district court granted summary judgment for US Sprint on this count because it determined that LaScola, who was admittedly employed for an indefinite period, was an employee-at-will and could be terminated at will, without cause. A general rule in the employment relationship context is “that an employment relationship without a fixed duration is terminable at will by either party.” Duldulao v. St. Mary of Nazareth Hosp. Ctr., 115 Ill.2d 482, 489, 106 Ill.Dec. 8, 15, 505 N.E.2d 314, 317 (1987). Duldulao does point out, however, that most courts, including the Illinois Supreme Court, “interpret the general ‘employment-at-will rule’ as a rule of construction, mandating only a presumption that a hiring without a fixed term is at will, a presumption which can be overcome by demonstrating that the parties contracted otherwise.” Id. at 489, 106 Ill.Dec. at 16, 505 N.E.2d at 318. In an employment contract with no definite duration, there are three exceptions to the rule of at-will termination: “(1) the firing contravenes public policy; (2) the employee is terminated in violation of particular conditions stated by the parties; and (3) ‘Under certain circumstances, a clear and definite oral agreement for permanent employment based on sufficient consideration may be enforced' even where the agreement does not mention a definite term.” Gordon v. Matthew Bender & Co., Inc., 562 F.Supp. 1286, 1294 (N.D.Ill.1983) (quoting Titchener v. Avery Coonley School, 39 Ill.App.3d 871, 350 N.E.2d 502, 507 (2nd Dist.1976)). See also Barr v. Kelso-Burnett Co., 106 Ill.2d 520, 525, 88 Ill.Dec. 628, 630, 478 N.E.2d 1354, 1356 (1985). LaScola argues that his situation falls within the third exception. He maintains that the statements made in soliciting him to work for US Sprint established a policy and practice of treating employees fairly. In return for what"
},
{
"docid": "9538889",
"title": "",
"text": "III is granted. Count VI Gordon attempts to avoid the at will doctrine in yet another way. He states that he received a letter from Matthew Bender on March 22, 1979, which states: As a Sales Representative for Matthew Bender & Co. you are paid on a straight commission basis. You are expected to operate out of your home and as such, set aside part of your home as an office wherein you are to maintain supplies, books, records, etc. with which to discharge your responsibilities. A necessary part of these responsibilities includes frequent use of your telephone in your home for which you are not specifically reimbursed. (Ex. H, attached to the complaint). Gordon established, equipped, and maintained an office, incurring expenses of $8,410. He states that he “expended this sum in reliance upon the implicit promise of continued employment by Matthew Bender” (para. 19). In Count VI, Gordon sues for breach of an implied contract created by Matthew Bender’s promise of continued employment and Gordon’s detrimental reliance on it. He prays for relief including an award of $8,410; an injunction ordering Matthew Bender to put him back to work; an award of $70,000 for lost compensation; punitive damages; and attorneys’ fees. Matthew Bender has moved to dismiss Count VI for failure to state a cause of action. Two things must be mentioned at the outset. First, Gordon agrees that his contract for employment stated no definite term. Second, Gordon has not alleged that any general promise of continuous employment was made to him. He claims that Ex. H embodies the promise upon which he relied to his detriment. A contract with no definite term is, of course, terminable at will. There are three exceptions: (1) the firing contravenes public policy (Palmateer, supra); (2) the employee is terminated in violation of particular conditions stated by the parties (Donahue v. Rockford Showcase & Fixture Co., 87 Ill.App.2d 47, 230 N.E.2d 278 (2nd Dist. 1967); and see cases discussed supra relating to Count II); and (3) “Under certain circumstances, a clear and definite oral agreement for permanent employment based on sufficient"
},
{
"docid": "14944628",
"title": "",
"text": "at 465, 529 N.E.2d at 285; see also Tol-mie, 930 F.2d at 582 (stating, following Koch, with respect to individual who left position covered by union collective bargaining agreement to accept managerial position, that simply forgoing union position was not adequate consideration). These eases make clear that, absent special circumstances, the mere relinquishment of a prior position, which must be given up in order to accept the new offer, will not support anything more than an at-will relationship. This does not end the inquiry, however. The Koch rule may be rendered inapplicable by the presence of certain circumstances in the bargaining process. The Illinois courts have recognized that, in certain cases, foregoing other employment is not merely incidental to accepting a new position. It appears that, if the employee’s forbearance is a “specially bargained for detriment,” see Titchener v. Avery Coonley Sch., 39 Ill.App.3d 871, 350 N.E.2d 502, 507 (1976), or causes the employee to suffer a “particular detriment,” see Heuvelman v. Triplett Elec. Instrument Co., 23 Ill.App.2d 231, 161 N.E.2d 875, 877-78 (1959), the employee’s termination of present employment may be sufficient consideration to support a promise of employment. Under these circumstances, when the termination of prior employment is specially bargained for, it can be said that the employee has surrendered something of value in exchange for the promise of employment. The exact circumstances in which this principle applies are unclear. In Titch-ener, the court found a lack of “special bargained for detriment” on the part of the plaintiff, a schoolteacher who left a tenured position in another district to work for the defendant. Significantly, however, the plaintiff in Titchener initiated the contact with the defendant, leading the court to observe that the plaintiff “sought the employment and there are no statements in the affidavits to show that [defendant] importuned [plaintiff] to leave her tenured position in the Le-Grange school system.” Titchener, 350 N.E.2d at 507. The implication of this statement is that, in cases in which the plaintiff was lured away from a position with a promise of permanent employment, sufficient consideration may be found. See also Molitor"
},
{
"docid": "9538876",
"title": "",
"text": "(1) this was a contract terminable at will, and therefore Gordon’s discharge is not actionable; (2) the contract lacks mutuality and therefore is not actionable; (3) the oral contract is unenforceable under the statute of frauds since it is for an indefinite period. Since the Court finds that this was a contract terminable at will, the other arguments will not be addressed. Gordon claims that though this was a contract for no definite period, it was not a contract without terms governing its duration. Gordon’s length of employment would depend on his “satisfactory performance” or “acceptable sales performance.” Therefore, the argument goes, so long as the condition of acceptable performance was being met — and this is a fact issue which precludes the granting of a motion to dismiss, since the Court must accept the plaintiff’s allegations as true — the contract could not be terminated. See Donahue v. Rockford Showcase & Fixture Co., 87 Ill. App.2d 47, 230 N.E.2d 278 (2nd Dist.1967) (contract of employment with no definite period not an employment at will; existence of specified condition — contract ter minable by either party if shipments fall below $25,000 — makes it not a contract terminable at will, but one terminable upon the existence of a particular condition). Gordon relies heavily on Scaramuzzo v. Glenmore Distilleries, Co., 501 F.Supp. 727 (N.D.Ill.1980). In Scaramuzzo, the fired plaintiff alleged that the defendant-employer had promised that Scaramuzzo “would be discharged only for good cause, and [that] he would retain all corporate responsibilities assigned to him as long as he competently executed such responsibilities.” Id. at 732. Defendant moved for summary judgment on grounds that this was an employment agreement terminable at will. The court denied the motion, stating that “[a] contract that fails to specify the length of the term of employment, but that does set conditions upon which termination may be based, is not terminable at will — it is terminated upon the existence of those conditions.” Id. Since there existed a fact question as to whether such conditions existed — whether the plaintiff could be discharged only for good"
},
{
"docid": "12642110",
"title": "",
"text": "at will. This case is distinguishable from Martin. First of all, the facts in Martin make- it clear the parties intended to establish a lifetime employment contract; and those facts are not present here. Moreover, Kittredge received no offer from any outside companies, so his move to Illinois was occasioned by a promotion within the same company. The Illinois courts examining the issue have held the exception the plaintiff relies on is a narrow one, and he does not fit within that exception. In Titchener v. Avery Coonley School, 39 Ill.App.3d 871, 350 N.E.2d 502, 507 (1976), a teacher who left a tenure position at one school to accept a position in another school was held to have a contract terminable at will. In Heuvelman v. Triplett Electric Instrument Company, 23 Ill.App.2d 231, 161 N.E.2d 875 (1959), the plaintiff turned down a job offer from a competing firm to stay with his employer, and the Court held that where no definite promises were made, the employment contract was terminable at will. Sufficient consideration requires something in addition to simply performing regular activities required by the employment agreement itself. See Ryan v. J.C. Penney Company, Inc., 627 F.2d 836, 837 (7th Cir.1980). Because there is not sufficient consideration to make this contract anything more than terminable at will, I find that there was no breach of contract, and the defendant’s motion for summary judgment on the breach of contract claim is also granted."
},
{
"docid": "9538893",
"title": "",
"text": "alleged reliance on the defendant’s promises. In Count VI Gordon does not seek the continuation of his employment for a reasonable period of time to allow him to recoup his $8,410 investment. Instead, he wants the Court to find that his period of employment is permanent. Allied supports no such cause of action. Further, Plaskitt v. Black Diamond Trailer Company, 209 Va. 460, 164 S.E.2d 645 (Va.1968), does not support even the limited result of Allied. Plaskitt (also applying Virginia law) distinguished Allied in holding that plaintiffs, who had acted for two years as the exclusive railway sales agents for the defendant prior to being terminated, and who spent more in expenses than they made in commissions for that period, had no cause of action to recover even the reasonable value of their services and their out-of-pocket expenses. Two Illinois cases determine the issue presented by Count VI. In Titchener, supra, a teacher left a tenured position at one school to take an appointment at the defendant school. She received a one year appointment which was renewed by the school for several years, but eventually she was fired. The plaintiff “stated that before she agreed to accept the offer defendant Malaeh [the school’s headmaster] told her ‘Your future is here at Avery Coonley and I hope it will be for many years to come.’ ” Id. 350 N.E.2d at 506. The court accepted the plaintiff’s version of the conversation as being true for purposes of deciding the motion for summary judgment, but found that neither was there a clear and definite oral agreement for permanent employment, nor did there exist sufficient consideration to support the defendant’s promise: the fact that the plaintiff gave up a tenured position did not show “a special bargained for detriment to plaintiff as consideration for the alleged promise.” Id. 350 N.E.2d at 507. Gordon’s case is a good deal weaker than the plaintiff’s case in Titchener. There, the plaintiff alleged a promise which mentioned future employment for “many years to come.” Here, the letter on which Gordon relies mentions nothing about the future, and nothing"
},
{
"docid": "14788586",
"title": "",
"text": "material fact. D. Discussion (1) Breach of Contract There is nothing in the record indicating that the parties had written contracts with each other, so the parties must have entered into oral agreements, or contracts, by which Plaintiffs agreed to render service to Defendant for a specified consideration. See Pearson v. Youngstown Sheet & Tube Co., 332 F.2d 439, 441 (7th Cir.) (construing Indiana’s law on employment contracts), cert. denied, 379 U.S. 914, 85 S.Ct. 262, 13 L.Ed.2d 185 (1964); Pennsylvania v. Dolan Co., 6 Ind.App. 109, 115, 32 N.E. 802, 804 (1892) (“the rule is settled that, where the contract declared upon is not all in writing, it is regarded as a parol contract”). Plaintiffs have not alleged or argued that their employment agreements with Defendant were for a definite term. There is nothing in the record establishing that Plaintiffs’ employment agreements were for a definite, or determinable, length of time. In fact, if Plaintiffs’ employment contracts were for a fixed term in excess of one year, then Indiana’s statute of frauds would be implicated. Ind.Code § 32-2-1-1; Ohio Table Pad Co. v. Hogan, 424 N.E.2d 144, 145 & n. 2 (Ind.Ct.App.1981); Whiteco Indus., Inc. v. Kopani, 514 N.E.2d 840 (Ind.Ct.App.1987). Plaintiffs have simply alleged that their employment contracts were to be “permanent” or for so long as they did their jobs, and they contend that, in exchange for Defendant’s promises of permanent employment, they accepted Zimmer’s offer and relocated to Indiana from Virginia. Under Indiana law, if a employment contract, oral or written, is for an indefinite term, or if the tenure of service cannot be determined from the terms of the contract, then such contract is terminable at the will of either party at any time. Pepsi-Cola General Bottlers, Inc. v. Woods, 440 N.E. 2d 696, 697 (Ind.Ct.App.1982); Montgomery Ward & Co. v. Guignet, 112 Ind.App. 661, 45 N.E.2d 337 (1942) (en banc); Shaw v. S.S. Kresge Co., 167 Ind.App. 1, 328 N.E.2d 775 (1975); Ryan v. J.C. Penney Co., Inc., 627 F.2d 836, 836-837 (7th Cir. 1980) (applying Indiana law and citing Shaw v. S.S. Kresge"
},
{
"docid": "23008581",
"title": "",
"text": "is merely a vague expression of goodwill; it is not an enforceable contractual promise. Statements of an informal character expressing goodwill and hope for association are too vague to be enforceable as contract provisions. See Titchener v. Avery Coonley School, 39 Ill.App.3d 871, 350 N.E.2d 502, 507 (1976) (employer stated to employee that “your future is with Avery Coonley and I hope it will be for many years to come.” The court found that the statement was too vague to establish a definite and certain promise even if it were admissible to contradict the term of employment written into the contract.). In sum, the license agreement does not expressly require Baxter to exert any specified level of effort to develop the Beraha needle, and the Chaltiel letter was too vague to overcome this deficiency even if it formed part of the license agreement. Therefore, we must next consider whether the license agreement contains any implied obligations on the part of Baxter. Beraha asserts two bases for an implied obligation in this case. First, he argues that any exclusive license agreement implies a best efforts clause. Second, he maintains that under Illinois law every contract implies good faith and fair dealing. B. Implied Best Efforts Clause To support an implied best efforts clause, Beraha relies on the principle set forth in a case familiar to every first-year law student, Justice Cardozo’s Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214 (1917). In Lady Duff-Gordon, the defendant was a fashion designer who gave a licensee the exclusive right to place the defendant’s endorsement on designs of others and to sell and license the defendant’s designs. Claiming that the defendant had placed her endorsement on goods without the licensee’s knowledge, the licensee sued for breach of contract. The defendant claimed that the contract lacked mutuality and could not be enforced. The court held that where the plaintiff's only source of revenue under the agreement came from the plaintiff’s sale of clothes that the defendant designed, the plaintiff had an implied obligation to exploit the defendant’s designs. With this implied obligation, the"
},
{
"docid": "9538890",
"title": "",
"text": "including an award of $8,410; an injunction ordering Matthew Bender to put him back to work; an award of $70,000 for lost compensation; punitive damages; and attorneys’ fees. Matthew Bender has moved to dismiss Count VI for failure to state a cause of action. Two things must be mentioned at the outset. First, Gordon agrees that his contract for employment stated no definite term. Second, Gordon has not alleged that any general promise of continuous employment was made to him. He claims that Ex. H embodies the promise upon which he relied to his detriment. A contract with no definite term is, of course, terminable at will. There are three exceptions: (1) the firing contravenes public policy (Palmateer, supra); (2) the employee is terminated in violation of particular conditions stated by the parties (Donahue v. Rockford Showcase & Fixture Co., 87 Ill.App.2d 47, 230 N.E.2d 278 (2nd Dist. 1967); and see cases discussed supra relating to Count II); and (3) “Under certain circumstances, a clear and definite oral agreement for permanent employment based on sufficient consideration may be enforced” even where the agreement does not mention a definite term. Titchener v. Avery Coonley School, 39 Ill.App.3d 871, 350 N.E.2d 502, 507 (2nd Dist.1976). “Sufficient consideration” means consideration in addition to the mere performance of regular services required by the employment agreement itself. Ryan v. J.C. Penney Co., Inc., 627 F.2d 836, 837 (7th Cir.1980) (applying Indiana law). Gordon cites Allied Equipment Co. v. Weber Engineered Products, 237 F.2d 879 (4th Cir.1956) (interpreting Virginia law), for the proposition that though consideration in addition to the mere performance of regular services is required, see Ryan v. J.C. Penney Co., Inc., supra, the fact that Gordon expended $8,410 in equipping an office in his home shows consideration in addition to the performance of regular services. Gordon has cited Allied for a proposition which does not support the theory presented in Count VI. In Allied, the plaintiff was given an exclusive wholesale distributorship by the defendant covering 85 counties in Virginia. The agreement had no fixed duration. In four years the plaintiff spent large"
},
{
"docid": "8922421",
"title": "",
"text": "presumption which can be overcome by demonstrating that the parties contracted otherwise.” Id. at 489, 106 Ill.Dec. at 16, 505 N.E.2d at 318. In an employment contract with no definite duration, there are three exceptions to the rule of at-will termination: “(1) the firing contravenes public policy; (2) the employee is terminated in violation of particular conditions stated by the parties; and (3) ‘Under certain circumstances, a clear and definite oral agreement for permanent employment based on sufficient consideration may be enforced' even where the agreement does not mention a definite term.” Gordon v. Matthew Bender & Co., Inc., 562 F.Supp. 1286, 1294 (N.D.Ill.1983) (quoting Titchener v. Avery Coonley School, 39 Ill.App.3d 871, 350 N.E.2d 502, 507 (2nd Dist.1976)). See also Barr v. Kelso-Burnett Co., 106 Ill.2d 520, 525, 88 Ill.Dec. 628, 630, 478 N.E.2d 1354, 1356 (1985). LaScola argues that his situation falls within the third exception. He maintains that the statements made in soliciting him to work for US Sprint established a policy and practice of treating employees fairly. In return for what LaScola terms US Sprint’s fairness “guarantees,” LaScola states that he accepted a pay reduction and signed a noncompetition agreement. Therefore, he claims, there existed clear and definite terms and consideration sufficient to create a just-cause employment contract. In Wilder v. Butler Mfg. Co., 178 Ill.App.3d 819, 821, 128 Ill.Dec. 41, 42, 533 N.E.2d 1129, 1130 (3d Dist.1989), the employee, Wilder, argued that she was promised permanent employment in her oral employment contract with the employer. She testified that she was told essentially the following: the employer would always have a woman in supervision and so long as she produced for the company she would have a job; she would “ ‘never have to anticipate a layoff”; and she would never be laid off. Id. The Illinois court determined that “[t]he majority of these statements upon which Wilder bases her claim of a lifetime employment contract are merely informal expressions of goodwill and hope that naturally occur between a prospective employer and a prospective employee in an interview situation.” Id. at 822, 128 Ill.Dec. at 43,"
},
{
"docid": "4407518",
"title": "",
"text": "Burlington Air Express, No. 87 C 3897, 1989 WL 84998 at 2 (N.D.Ill. July 20, 1989); Thompson, 1986 WL 11363 at 2, for any person who is changing jobs has to relinquish prior employment to place himself in a position to accept his new employment, and ... therefore the person who relinquishes employment to accept a “permanent” or “lifetime” position is not doing anything more than he would do to accept an indefinite hiring. Annotation, supra p. 6, at 234-35. But Martin both recognizes and incorporates this basic principle in its holding, observing that “[n]ot every relinquishment of a job or job offer ... will be sufficient consideration to support an alleged agreement of permanent employment.” Martin, 109 Ill. App.3d at 603 n. 1, 65 Ill.Dec. at 149 n. 1, 440 N.E.2d at 1004 n. 1. Absent special circumstances, the court acknowledged, the mere relinquishment of a prior job, which must be given up in order to accept the new offer, will not support anything more than an employment-at-will relationship. Id. Martin’s bolder pronouncement — that in some cases forgoing alternative employment can rise to the level of valid consideration — is similarly supported by Illinois caselaw. In Titchener v. Avery Coonley School, 39 Ill.App.3d 871, 350 N.E.2d 502 (2d Dist.1976), on which both Ladesic and Koch rely in criticizing Martin as departing from Illinois precedent, the court found a lack of “special bargained for detriment” on the part of the plaintiff, a schoolteacher who left a tenured position in another district to work for the defendant. Significantly, however, the plaintiff in Titchener herself initiated contact with the defendant, leading the court to observe that the plaintiff “sought the employment and there are no statements in the affidavits to show that [defendant] importuned [plaintiff] to leave her tenured position in the LaGrange School system.” 39 Ill.App.3d at 875, 350 N.E.2d at 507. The obvious implication of this statement is that in cases where the plaintiff was lured away from another job with a promise of permanent employment, sufficient consideration may be found. Indeed, a contract for permanent employment was upheld"
}
] |
656798 | before us, then, is whether in the circumstances of this case the Court of Appeals was correct in holding that Evans’ murder conviction had to be set aside because of the admission of Shaw’s testimony. ■ In considering this question, we start by recognizing that this Court has squarely held that “the Sixth Amendment’s right of an accused to confront the witnesses against him is . . . a fundamental right . . . made obligatory on the States by the Fourteenth Amendment.” Pointer v. Texas, 380 U. S. 400, 403. See also Douglas v. Alabama, 380 U. S. 415; Brookhart v. Janis, 384 U. S. 1; Barber v. Page, 390 U. S. 719; Roberts v. Russell, 392 U. S. 293; REDACTED California v. Green, 399 U. S. 149. But that is no more than the beginning of our inquiry. I It is not argued, nor could it be, that the constitutional right to confrontation requires that no hearsay evidence can ever.be introduced. In the Pointer case itself, we referred to the decisions of this Court that have approved the admission of hearsay: “This Court has recognized the admissibility against an accused of dying declarations, Mattox v. United States, 146 U. S. 140, 151, and of testimony of a deceased witness who has testified at a former trial, Mattox v. United States, 156 U. S. 237, 240-244. See also Dowdell v. United States, supra, 221 U. S., at 330; Kirby v. United States, supra, | [
{
"docid": "22539250",
"title": "",
"text": "Mr. Justice Black delivered the opinion of the Court. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him We have held that the Fourteenth Amendment makes the guarantees of this clause obligatory upon the States. Pointer v. Texas, 380 U. S. 400 (1965). One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial. Lewis v. United States, 146 U. S. 370 (1892). The question presented in this case is whether an accused can claim the benefit of this constitutional right to remain in the courtroom while at the same time he engages in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial. The issue arose in the following way. The respondent, Allen, was convicted by an Illinois jury of armed robbery and was sentenced to serve 10 to 30 years in the Illinois State Penitentiary. The evidence against him showed that on August 12, 1956, he entered a tavern in Illinois and, after ordering a drink, took $200 from the bartender at gunpoint. The Supreme Court of Illinois affirmed his conviction, People v. Allen, 37 Ill. 2d 167, 226 N. E. 2d 1 (1967), and this Court denied certiorari. 389 U. S. 907 (1967). Later Allen filed a petition for a writ of habeas corpus in federal court alleging that he had been wrongfully deprived by the Illinois trial judge of his constitutional right to remain present throughout his trial. Finding no constitutional violation, the District Court declined to issue the writ. The Court of Appeals reversed, 413 F. 2d 232 (1969), Judge Hastings dissenting. The facts surrounding Allen’s expulsion from the courtroom are set out in the Court of Appeals’ opinion sustaining Allen’s contention: “After his indictment and during the pretrial stage, the petitioner [Allen] refused court-appointed counsel and indicated to the"
}
] | [
{
"docid": "22726087",
"title": "",
"text": "court. In upholding that claim, the Court of Appeals for the Fifth Circuit regarded its duty to be “not only to interpret the framers’ original concept in light of historical developments, but also to translate into due-process terms the constitutional boundaries of the hearsay rule.” (Footnotes omitted.) The court upheld the appellee’s constitutional claim because it could .find no “salient and cogent reasons” for the exception to the hearsay rule Georgia applied in the present case, an exception that the court pointed out was broader than that applicable to conspiracy trials in the federal courts. The question before us, then, is whether in the circumstances of this case the Court of Appeals was correct in holding that Evans’ murder conviction had to be set aside because of the admission of Shaw’s testimony. ■ In considering this question, we start by recognizing that this Court has squarely held that “the Sixth Amendment’s right of an accused to confront the witnesses against him is . . . a fundamental right . . . made obligatory on the States by the Fourteenth Amendment.” Pointer v. Texas, 380 U. S. 400, 403. See also Douglas v. Alabama, 380 U. S. 415; Brookhart v. Janis, 384 U. S. 1; Barber v. Page, 390 U. S. 719; Roberts v. Russell, 392 U. S. 293; Illinois v. Allen, 397 U. S. 337; California v. Green, 399 U. S. 149. But that is no more than the beginning of our inquiry. I It is not argued, nor could it be, that the constitutional right to confrontation requires that no hearsay evidence can ever.be introduced. In the Pointer case itself, we referred to the decisions of this Court that have approved the admission of hearsay: “This Court has recognized the admissibility against an accused of dying declarations, Mattox v. United States, 146 U. S. 140, 151, and of testimony of a deceased witness who has testified at a former trial, Mattox v. United States, 156 U. S. 237, 240-244. See also Dowdell v. United States, supra, 221 U. S., at 330; Kirby v. United States, supra, 174 U. S.,"
},
{
"docid": "22707324",
"title": "",
"text": "cross-examination, and demeanor provide “all that the Sixth Amendment demands: ‘substantial compliance with the purposes behind the confrontation requirement’”) (quoting Green, supra, at 166); see also Stincer, 482 U. S., at 739-744 (confrontation right not violated by exclusion of defendant from competency hearing of child witnesses, where defendant had opportunity for full and effective cross-examination at trial); Davis v. Alaska, 415 U. S. 308, 315-316 (1974); Douglas v. Alabama, 380 U. S. 415, 418 (1965); Pointer, supra, at 406-407; 5 J. Wigmore, Evidence § 1395, p. 150 (J. Chadbourn rev. 1974). For this reason, we have never insisted on an actual face-to-face encounter at trial in every instance in which testimony is admitted against a defendant. Instead, we have repeatedly held that the Clause permits, where necessary, the admission of certain hearsay statements against a defendant de spite the defendant’s inability to confront the declarant at trial. See, e. g., Mattox, 156 U. S., at 243 (“[T]here could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations”); Pointer, supra, at 407 (noting exceptions to the confrontation right for dying declarations and “other analogous situations”). In Mattox, for example, we held that the testimony of a Government witness at a former trial against the defendant, where the witness was fully cross-examined but had died after the first trial, was admissible in evidence against the defendant at his second trial. See 156 U. S., at 240-244. We explained: “There is doubtless reason for saying that... if notes of [the witness’] testimony are permitted to be read, [the defendant] is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth"
},
{
"docid": "7632870",
"title": "",
"text": "although an accused normally has “the right to present his own witnesses to establish a defense,” Washington v. Texas, 388 U. S. 14, 19 (1967), an accused in a mass conspiracy trial may not put on his codefendants without their prior waivers of their absolute rights not to testify. All of these oppressive features were present in various degrees in this trial. But, in particular, the most onerous burden cast upon these petitioners was their inability to cross-examine each other as to comments which Government witnesses said they had heard them utter. The Court of Appeals recognized that “[t]here was much testimony as to statements made by various co-conspirators during the course, and in furtherance of the conspiracy.” 451 F. 2d 49, 71. For example, one important prosecution witness testified that he had been a contractor hired by the city administration and that one of the accused conspirators, “Tony Boy” Boiardo, had told him: “You pay me the 10% ... I take care of the Mayor. I take care of the Council.” (App. 2611a.) The lawyer for the former mayor, however, was not permitted to put Boiardo on the stand and to ask him whether Addonizio had, in fact, entered into an agreement with him to coerce kickbacks. This handicap of an accused is at war with the holdings of this Court that a defendant should be permitted to confront his accusers, especially where, as here, their declarations might have been purposely misleading or self-serving. Pointer v. Texas, 380 U. S. 400, 407 (1965); Douglas v. Alabama, 380 U. S. 415 (1965); Brookhart v. Janis, 384 U. S. 1 (1966); Bruton v. United States, supra; Barber v. Page, 390 U. S. 719 (1968); Roberts v. Russell, 392 U. S. 293 (1968). Dutton v. Evans, 400 U. S. 74 (1970), is not inconsistent with this proposition. There the Court found that the hearsay was probably reliable. “[T]he circumstances under which [the declarant] made the statement were such as to give reason to suppose that [he] did not misrepresent [his coconspirator’s] involvement in the crime.” Id., at 89. On the other hand,"
},
{
"docid": "22607772",
"title": "",
"text": "through the Confrontation Clause, has imposed rigid limits on the States in this area. As the Court’s opinion indicates,, that conclusion is erroneous. The California statute meets the tests of the Sixth and Fourteenth Amendments, and accordingly, the wisdom of the statute is properly left to the State of California; other jurisdictions will undoubtedly watch the experiment with interest. The circumstances of this case demonstrate again that neither the Constitution as originally drafted, nor any amendment, nor indeed any need, dictates that we must have absolute uniformity in the criminal law in all the States. Federal authority was never intended to be a “ramrod” to compel conformity to nonconstitutional standards. Mr. Justice Harlan, concurring. The precise holding of the Court today is that the Confrontation Clause of the Sixth Amendment does not preclude the introduction of an out-of-court declaration, taken under oath and subject to cross-examination, to prove the truth of the matters asserted therein, when the declarant is available as a witness at trial. With this I agree. The California decision that we today reverse demonstrates, however, the need to approach this case more broadly than the Court has seen fit to do, and to confront squarely the Confrontation Clause because the holding of the California Supreme Court is the result of an understandable misconception, as I see things, of numerous decisions of this Court, old and recent, that have indiscriminately equated “confrontation” with “cross-examination.” See Bruton v. United States, 391 U. S. 123 (1968); Roberts v. Russell, 392 U. S. 293 (1968); Pointer v. Texas, 380 U. S. 400 (1965); Douglas v. Alabama, 380 U. S. 415 (1965); Brookhart v. Janis, 384 U. S. 1 (1966); Barber v. Page, 390 U. S. 719 (1968); Smith v. Illinois, 390 U. S. 129 (1968); Bridges v. Wixon, 326 U. S. 135 (1945); Salinger v. United States, 272 U. S. 542, 548 (1926) (dictum); Reynolds v. United States, 98 U. S. 145 (1879); Mattox v. United States, 156 U. S. 237 (1895); Motes v. United States, 178 U. S. 458 (1900); Kirby v. United States, 174 U. S. 47 (1899); and"
},
{
"docid": "19652768",
"title": "",
"text": "has met its burden of establishing this predicate, I dissent. “There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” Pointer v. Texas, 380 U. S. 400, 405 (1965). Accord, Berger v. California, 393 U. S. 314, 315 (1969); Barber v. Page, 390 U. S. 719, 721 (1968); Pointer v. Texas, supra, at 410 (Stewart, J., concurring); Kirby v. United States, 174 U. S. 47, 55-56 (1899). Historically, the inclusion of the Confrontation Clause in the Bill of Rights reflected the Framers’ conviction that the defendant must not be denied the opportunity to challenge his accusers in a direct encounter before the trier of fact. See California v. Green, 399 U. S. 149, 156-158 (1970); Park v. Huff, 506 F. 2d 849, 861-862 (CA5 1975) (Gewin, J., concurring). At the heart of this constitutional guarantee is the accused’s right to compel the witness “to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U. S. 237, 242-243 (1895). See also California v. Green, supra, at 174-183 (Harlan, J., concurring). Despite the literal language of the Sixth Amendment, our cases have recognized the necessity for a limited exception to the confrontation requirement for the prior testimony of a witness who is unavailable at the defendant’s trial. In keeping with the importance of this provision in our constitutional scheme, however, we have imposed a heavy burden on the prosecution either to secure the presence of the witness or to demonstrate the impossibility of that endeavor. Barber v. Page, supra, held that the absence of a witness from the jurisdiction does not excuse the State’s failure to attempt to compel the witness’ attendance at trial; in such circumstances, the government must"
},
{
"docid": "22607773",
"title": "",
"text": "reverse demonstrates, however, the need to approach this case more broadly than the Court has seen fit to do, and to confront squarely the Confrontation Clause because the holding of the California Supreme Court is the result of an understandable misconception, as I see things, of numerous decisions of this Court, old and recent, that have indiscriminately equated “confrontation” with “cross-examination.” See Bruton v. United States, 391 U. S. 123 (1968); Roberts v. Russell, 392 U. S. 293 (1968); Pointer v. Texas, 380 U. S. 400 (1965); Douglas v. Alabama, 380 U. S. 415 (1965); Brookhart v. Janis, 384 U. S. 1 (1966); Barber v. Page, 390 U. S. 719 (1968); Smith v. Illinois, 390 U. S. 129 (1968); Bridges v. Wixon, 326 U. S. 135 (1945); Salinger v. United States, 272 U. S. 542, 548 (1926) (dictum); Reynolds v. United States, 98 U. S. 145 (1879); Mattox v. United States, 156 U. S. 237 (1895); Motes v. United States, 178 U. S. 458 (1900); Kirby v. United States, 174 U. S. 47 (1899); and Dowdell v. United States, 221 U. S. 325, 330 (1911). These decisions have, in my view, left ambiguous whether and to what extent the Sixth Amendment “con-stitutionalizes” the hearsay rule of the common law. If “confrontation” is to be equated with the right to cross-examine, it would transplant the ganglia of hearsay rules and their exceptions into the body of constitutional protections. The stultifying effect of such a course upon this aspect of the law of evidence in both state and federal systems need hardly be labored, and it is good that the Court today, as I read its opinion, firmly eschews that course. Since, in my opinion, this state decision imperatively demonstrates the need for taking a fresh look at the constitutional concept of “confrontation,” I do not think that stare decisis should be allowed to stand in the way, albeit the presently controlling cases are of recent vintage. As the Court’s opinion suggests, the Confron tation Clause comes to us on faded parchment. History seems to give us very little insight into the"
},
{
"docid": "22726088",
"title": "",
"text": "States by the Fourteenth Amendment.” Pointer v. Texas, 380 U. S. 400, 403. See also Douglas v. Alabama, 380 U. S. 415; Brookhart v. Janis, 384 U. S. 1; Barber v. Page, 390 U. S. 719; Roberts v. Russell, 392 U. S. 293; Illinois v. Allen, 397 U. S. 337; California v. Green, 399 U. S. 149. But that is no more than the beginning of our inquiry. I It is not argued, nor could it be, that the constitutional right to confrontation requires that no hearsay evidence can ever.be introduced. In the Pointer case itself, we referred to the decisions of this Court that have approved the admission of hearsay: “This Court has recognized the admissibility against an accused of dying declarations, Mattox v. United States, 146 U. S. 140, 151, and of testimony of a deceased witness who has testified at a former trial, Mattox v. United States, 156 U. S. 237, 240-244. See also Dowdell v. United States, supra, 221 U. S., at 330; Kirby v. United States, supra, 174 U. S., at 61. . . . There are other analogous situations which might not fall within the scope of the constitutional rule requiring confrontation of witnesses.” The argument seems to be, rather, that in any given case the Constitution requires a reappraisal of every exception to the hearsay rule, no matter how long established, in order to determine whether, in the words of the Court of Appeals, it is supported by “salient and cogent reasons.” The logic of that position would seem to require a constitutional reassessment of every established hearsay exception, federal or state, but in the present case it is argued only that the hearsay exception applied by Georgia is constitutionally invalid because it does not identically conform to the hearsay exception applicable to conspiracy trials in the federal courts. Ap-pellee does not challenge and we do not question the validity of the coconspirator exception applied in the federal courts. That the two evidentiary rules are not identical must be readily conceded. It is settled that in federal conspiracy trials the hearsay exception that"
},
{
"docid": "22698911",
"title": "",
"text": "Court repeatedly has disavowed any intent to cause that result, see, e. g., ante, at 352; Idaho v. Wright, 497 U. S., at 814; United States v. Inadi, 475 U. S. 387, 393, n. 5 (1986); Dutton v. Evans, 400 U. S., at 86; California v. Green, 399 U. S., at 155, I fear that our decisions have edged ever further in that direction. For the foregoing reasons, I respectfully suggest that, in an appropriate case, we reconsider how the phrase “witness against” in the Confrontation Clause pertains to the admission of hearsay. I join the Court’s opinion except for its discussion of the narrow reading of this phrase proposed by the United States. b The only recent decision to address this question explicitly was Ohio v. Roberts, 448 U. S. 56 (1980), in which the Court simply stated that “[t]he historical evidence leaves little doubt, however, that the Clause was intended to exclude some hearsay,” id., at 63 (citing California v. Green, 399 U. S. 149, 156-157 (1970)). The cited passage in Green simply reiterates the previously noted point that the right of confrontation evolved as a response to the problem of trial by affidavit. Thus, the statement in Roberts that “the Clause was intended to exclude some hearsay” is correct as far as it goes (affidavits and depositions are hearsay), but the opinion should not be read as having established that the drafters intended the Clause to encompass all hearsay, or even hearsay in general. See, e. g., Reynolds v. United States, 98 U. S. 145, 158-161 (1879) (testimony at prior trial); Mattox v. United States, 156 U. S. 237, 240-244 (1895) (same); Motes v. United States, 178 U. S. 458, 471-474 (1900) (testimony at “preliminary trial”); Pointer v. Texas, 380 U. S. 400, 406-408 (1965) (preliminary hearing testimony); Douglas v. Alabama, 380 U. S. 415, 418-420 (1965) (codefendant’s confession); Brookhart v. Janis, 384 U. S. 1, 4 (1966) (same); Barber v. Page, 390 U. S. 719, 722-725 (1968) (preliminary hearing testimony); Bruton v. United States, 391 U. S. 123, 126-128, and n. 3 (1968) (codefendant’s confession); Roberts"
},
{
"docid": "22607798",
"title": "",
"text": "(harmless error); Chapman v. California, 386 U. S. 18 (1967); Kaufman v. United States, 394 U. S. 217, 226 (1969) (collateral relief), and, for the States, in the context of incorporation, which makes every hearsay ruling a potential 28 U. S. C. §2254 issue. An additional consequence of constitu-tionalizing the hearsay rules would be to put them beyond the reach of Congress. But see Katzenbach v. Morgan, 384 U. S. 641 (1966). Only Kirby did not, strictly speaking, involve the use of deposition testimony. In Kirby’s case the Government sought to introduce a judgment of conviction obtained against three perpetrators of a theft in order to prove that property found in Kirby’s possession was, in fact, stolen. In Reynolds the Court held that an accused cannot complain about the introduction of prior recorded testimony when the witness’ absence is procured by the defense. In Mattox the Court, analogizing to the exception to the hearsay rule for dying declarations, held admissible prior recorded testimony taken under oath and subjected to cross-examination where the witness had died since the first trial. In Motes the Court declined to countenance testimony taken subject to cross-examination where it appeared the Government might have produced the witness. Most later cases have also involved written testimony. See, e. g., Barber v. Page, supra; Pointer v. Texas, supra; Douglas v. Alabama, supra (confession); Stein v. New York, 346 U. S. 156, 194 (1953) (confession); West v. Louisiana, 194 U. S. 258 (1904); cf. Greene v. McElroy, 360 U. S. 474 (1959). Other problems treated under the rubric of confrontation have included, inter alia, the exclusion of the accused from his trial, In re Oliver, 333 U. S. 257 (1948); Brookhart v. Janis, supra; cf. Snyder v. Massachusetts, 291 U. S. 97 (1934) (a viewing); Parker v. Gladden, 385 U. S. 363 (1966) (improper remarks by bailiff); Turner v. Louisiana, 379 U. S. 466 (1965). That, historically, the primary concern was the possibility of trial by affidavit may be evidenced by several early state constitutional provisions that specifically made exceptions to confrontation by providing for use of depositions when"
},
{
"docid": "22726126",
"title": "",
"text": "conversation immediately after Williams’ arraignment. Williams did not testify nor was he called as a witness. .Nevertheless, the Court today concludes that admission of the extrajudicial statement, attributed to an alleged partner in crime did not deny Evans the right “to be confronted with the witnesses against him” guaranteed by the Sixth and Fourteenth Amendments to the Constitution. In so' doing,. the majority reaches a result completely inconsistent with recent opinions of this Court, especially Douglas v. Alabama, 380 U. S. 415 (1965), and Bruton v. United States, 391 U. S. 123 (1968). In my view, those cases fully apply here and establish a clear violation of Evans’ constitutional rights. In Pointer v. Texas, 380 U. S. 400 (1965), this Court first held that “the Sixth Amendment’s right of an accused to confront the witnesses against him is . . . a fundamental right and is made obligatory on the States by the Fourteenth Amendment.” Id., at 403. That decision held constitutionally inadmissible a statement offered against a defendant at a state trial where the statement was originally made at a preliminary hearing under circumstances not affording the defendant an adequate opportunity for cross-examination. Indeed, we have since held that even cross-examination at a prior hearing does not satisfy the confrontation requirement, at least where the witness who made the statement is available tnbe called at trial. Barber v. Page, 390 U. S. 719 (1968). “The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.” Id., at 725. In Douglas v. Alabama, supra, this Court applied the principles of Pointer to a case strikingly similar to this one. There, as here, the State charged two defendants with a crime and tried them in separate trials. There, as here, the State first prosecuted one defendant (Loyd) and then used a statement by him in the trial of the •second defendant (Douglas). Although the State called Loyd as a witness, an appeal from his conviction was pending and he refused to testify on"
},
{
"docid": "7632871",
"title": "",
"text": "lawyer for the former mayor, however, was not permitted to put Boiardo on the stand and to ask him whether Addonizio had, in fact, entered into an agreement with him to coerce kickbacks. This handicap of an accused is at war with the holdings of this Court that a defendant should be permitted to confront his accusers, especially where, as here, their declarations might have been purposely misleading or self-serving. Pointer v. Texas, 380 U. S. 400, 407 (1965); Douglas v. Alabama, 380 U. S. 415 (1965); Brookhart v. Janis, 384 U. S. 1 (1966); Bruton v. United States, supra; Barber v. Page, 390 U. S. 719 (1968); Roberts v. Russell, 392 U. S. 293 (1968). Dutton v. Evans, 400 U. S. 74 (1970), is not inconsistent with this proposition. There the Court found that the hearsay was probably reliable. “[T]he circumstances under which [the declarant] made the statement were such as to give reason to suppose that [he] did not misrepresent [his coconspirator’s] involvement in the crime.” Id., at 89. On the other hand, involved here were declarants, as mentioned earlier, who might have been motivated to misrepresent the roles of other parties in order to induce contractors, such as Rigo (the Government’s key witness), to make kickbacks. Moreover, in Dutton the hearsay was “of peripheral significance at most,” whereas here much of the case against the petitioners, as the Court of Appeals pointed out, was admitted under the coconspirator exception to the hearsay rule. In addition, the petitioners were deprived of the right to cross-examine codefendant Gordon (who is not one of the petitioners). He had testified at the prior grand jury proceeding and that testimony was introduced at trial by the Government to corroborate the story of the Government’s key witness, Rigo, as to various kickback transactions. The circumstances at trial were substantially similar to those involved in Bruton except that Gordon’s grand jury remarks did not directly mention his codefendants. Normally, that difference would be sufficient to support the lower court’s finding that Bruton was inapposite but for the fact that the Government’s case against all"
},
{
"docid": "22399479",
"title": "",
"text": "and Fourteenth Amendments. Accordingly, the judgment is reversed and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered. The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him See Pointer v. Texas, 380 U. S. 400; Douglas v. Alabama, 380 U. S. 415. Roberts v. Russell, 392 U. S. 293, held that the decision in Bruton v. United States, 391 U. S. 123, is applicable to the States and is to be applied retroactively. Brookhart v. Janis, 384 U. S. 1; Barber v. Page, 390 U. S. 719; Roberts v. Russell, 392 U. S. 293; Harrington v. California, 395 U. S. 250. Mr. Justice Harlan, concurring. I join in the opinion and judgment of the Court. I would, however, go further and hold that, because respondent’s conviction became final before this Court decided Bruton v. United States, 391 U. S. 123 (1968), he cannot avail himself of that new rule in subsequent federal habeas corpus proceedings. See Mackey v. United States, 401 U. S. 667, 675 (1971) (separate opinion of this writer). It is difficult to fathom what public policy is served by opening the already overcrowded federal courts to claims such as these. Respondent’s trial and appeals were, at the time they occurred, conducted in a manner perfectly consistent with then-prevailing constitutional norms. A reversal of the conviction now would either compel the State to place an already once-tried case again on its criminal docket, to be retried on substantially the same (but now more stale) evidence or else force the State to forgo its interest in enforcing in this instance its criminal laws relating to kidnaping, robbery, and car theft because of the disappearance of evidence. Conversely, if federal habeas relief is denied on the merits, as it now is by this Court, the energies of the federal courts have been expended to no good purpose. To justify such a serious interference with the State’s powers to enforce its criminal"
},
{
"docid": "22751087",
"title": "",
"text": "similar cases generally declaring that the Sixth Amendment does not apply to the States can no longer be regarded as the law. We hold that petitioner was entitled to be tried in accordance with the protection of the confrontation guarantee of the Sixth Amendment, and that that guarantee, like the right against compelled self-incrimination, is “to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Malloy v. Hogan, supra, 378 U. S., at 10. II. Under this Court’s prior decisions, the Sixth Amendment’s guarantee of confrontation and cross-examination was unquestionably denied petitioner in this case. As has been pointed out, a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him. See, e. g., Dowdell v. United States, 221 U. S. 325, 330; Motes v. United States, 178 U. S. 458, 474; Kirby v. United States, 174 U. S. 47, 55-56; Mattox v. United States, 156 U. S. 237, 242-243. Cf. Hopt v. Utah, 110 U. S. 574, 581; Queen v. Hepburn, 7 Cranch 290, 295. This Court has recognized the admissibility against an accused of dying declarations, Mattox v. United States, 146 U. S. 140, 151, and of testimony of a deceased witness who has testified at a former' trial, Mattox v. United States, 156 U. S. 237, 240-244. See also Dowdell v. United States, supra, 221 U. S., at 330; Kirby v. United States, supra, 174 U. S., at 61. Nothing we hold here is to the contrary. The case before us would be quite a different one had Phillips’ statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine. Compare Motes v. United States, supra, 178 U. S., at 474. There are other analogous situations which might not fall within the scope of the constitutional rule requiring confrontation of witnesses. The case before us, however, does not present any situation like those mentioned above or"
},
{
"docid": "22698912",
"title": "",
"text": "reiterates the previously noted point that the right of confrontation evolved as a response to the problem of trial by affidavit. Thus, the statement in Roberts that “the Clause was intended to exclude some hearsay” is correct as far as it goes (affidavits and depositions are hearsay), but the opinion should not be read as having established that the drafters intended the Clause to encompass all hearsay, or even hearsay in general. See, e. g., Reynolds v. United States, 98 U. S. 145, 158-161 (1879) (testimony at prior trial); Mattox v. United States, 156 U. S. 237, 240-244 (1895) (same); Motes v. United States, 178 U. S. 458, 471-474 (1900) (testimony at “preliminary trial”); Pointer v. Texas, 380 U. S. 400, 406-408 (1965) (preliminary hearing testimony); Douglas v. Alabama, 380 U. S. 415, 418-420 (1965) (codefendant’s confession); Brookhart v. Janis, 384 U. S. 1, 4 (1966) (same); Barber v. Page, 390 U. S. 719, 722-725 (1968) (preliminary hearing testimony); Bruton v. United States, 391 U. S. 123, 126-128, and n. 3 (1968) (codefendant’s confession); Roberts v. Russell, 392 U. S. 293, 294-295 (1968) (per curiam) (same); Berger v. California, 393 U. S. 314, 314-315 (1969) (per curiam) (preliminary hearing testimony); California v. Green, 399 U. S., at 152 (preliminary hearing testimony and statement to police); Mancusi v. Stubbs, 408 U. S. 204, 213-216 (1972) (prior testimony)."
},
{
"docid": "22607423",
"title": "",
"text": "S. 237 (1895). In allowing the statement to be admitted, we relied on the fact that the defendant had had, at the first trial, an adequate opportunity to confront the witness: “The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination. This, the law says, he shall under no circumstances be deprived of. . . .” Id., at 244. Our later cases conform to Mattox's holding that prior trial or preliminary hearing testimony is admissible only if the defendant had an adequate opportunity to cross-examine. See Mancusi v. Stubbs, 408 U. S. 204, 213-216 (1972); California v. Green, 399 U. S. 149, 165-168 (1970); Pointer v. Texas, 380 U. S., at 406-408; cf. Kirby v. United States, 174 U. S. 47, 55-61 (1899). Even where the defendant had such an opportunity, we excluded the testimony where the government had not established unavailability of the witness. See Barber v. Page, 390 U. S. 719, 722-725 (1968); cf. Motes v. United States, 178 U. S. 458, 470-471 (1900). We similarly excluded accomplice confessions where the defendant had no opportunity to cross-examine. See Roberts v. Russell, 392 U. S. 293, 294-295 (1968) (per curiam); Bruton v. United States, 391 U. S. 123, 126-128 (1968); Douglas v. Alabama, 380 U. S. 415, 418-420 (1965). In contrast, we considered reliability factors beyond prior opportunity for cross-examination when the hearsay statement at issue was not testimonial. See Dutton v. Evans, 400 U. S., at 87-89 (plurality opinion). Even our recent cases, in their outcomes, hew closely to the traditional line. Ohio v. Roberts, 448 U. S., at 67-70, admitted testimony from a preliminary hearing at which the defendant had examined the witness. Lilly v. Virginia, supra, excluded testimonial statements that the defendant had had no opportunity to test by cross-examination. And Bourjaily v. United States, 483 U. S. 171, 181-184 (1987), admitted statements made unwittingly to a Federal Bureau of Investigation informant after applying a more general test that did not"
},
{
"docid": "22399478",
"title": "",
"text": "testified that the statement was false, it could hardly have profited the respondent for his counsel through cross-examination to try to shake that testimony. If the jury were to believe that the statement was false as to Runnels, it could hardly conclude that it was not false as to the respondent as well. The short of the matter is that, given a joint trial and a common defense, Runnels’ testimony respecting his alleged out-of-court statement was more favorable to the respondent than any that cross-examination by counsel could possibly have produced, had Runnels “affirmed the statement as his.” It would be unrealistic in the extreme in the circumstances here presented to hold that the respondent was denied either the opportunity or the benefit of full and effective cross-examination of Runnels. We conclude that where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments. Accordingly, the judgment is reversed and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered. The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him See Pointer v. Texas, 380 U. S. 400; Douglas v. Alabama, 380 U. S. 415. Roberts v. Russell, 392 U. S. 293, held that the decision in Bruton v. United States, 391 U. S. 123, is applicable to the States and is to be applied retroactively. Brookhart v. Janis, 384 U. S. 1; Barber v. Page, 390 U. S. 719; Roberts v. Russell, 392 U. S. 293; Harrington v. California, 395 U. S. 250. Mr. Justice Harlan, concurring. I join in the opinion and judgment of the Court. I would, however, go further and hold that, because respondent’s conviction became final before this Court decided Bruton v. United States, 391 U. S. 123 (1968), he cannot avail himself of"
},
{
"docid": "22726124",
"title": "",
"text": "to my conclusion, I note that counsel for Evans conceded at oral argüment that he could have secured Williams’ presence to testify, but decided against it. Tr. of Oral Arg. 51, 55. Reliance on the Due Process Clauses would also have the virtue of subjecting rules of evidence to constitutional scrutiny in civil and criminal trials alike. It is exceedingly rare for the common law to make .admissibility of evidence turn on whether the proceeding is civil or criminal in nature. See 1 Wigmore, supra, §4, at 16-17. This feature of our jurisprudence is a further indication that the Confrontation Clause, which applies only to criminal prosecutions,, was never' intended as a constitutional standard for testing rules of evidence. Reynolds v. United, States, 98 U. S. 145 (1879); Mattox v. United States, 156 U. S. 237 (1895); Motes v. United States, 178 U. S. 458 (1900); West v. Louisiana, 194 U. S. 258 (1904); Pointer v. Texas, 380 U. S. 400 (1965); Barber v. Page, 390 U. S. 719 (1968); California v. Green, 399 U. S. 149 (1970). Quite apart from Malloy v. Hogan, 378 U. S. 1 (1964), Georgia has long recognized the’ privilege. The Georgia Constitution of 1877, Art. I, § 1, ¶ VI, provided that: “No person shall be compelled to give testimony tending in any manner to criminate .himself,” and the same language appears in the present state constitution. Ga. Const, of 1945, Art. I, § 1, ¶ VI. The right had previously been recognized as a matter of common law, even in civil.trials. See, e. g., Marshall v. Riley, 7 Ga. 367 (1849). Mr. Justice Marshall, whom Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Brennan join, dissenting. Appellee Evans was convicted of first-degree murder after a trial in which a witness named Shaw was allowed to testify, over counsel’s strenuous objection, about a statement he claimed was made to him by Williams, an alleged accomplice who had already been convicted in a separate trial. According to Shaw, the statement, which implicated both Williams and Evans in the crime, was made in a prison"
},
{
"docid": "22713449",
"title": "",
"text": "might be thought to violate the literal terms of the Clause. See, e. g., Mattox v. United States, 156 U. S. 237, 243 (1895); Pointer v. Texas, 380 U. S. 400, 407 (1965). We reaffirmed only recently that “[w]hile a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable, this Court has rejected that view as ‘unintended and too extreme.’” Bourjaily v. United States, 483 U. S. 171, 182 (1987) (quoting Ohio v. Roberts, 448 U. S. 56, 63 (1980)); see also Maryland v. Craig, post, at 847 (“[T]he [Confrontation] Clause permits, where necessary, the admission of certain hearsay statements against a defendant despite the defendant’s inability to confront the declarant at trial”). Although we have recognized that hearsay rules and the Confrontation Clause are generally designed to protect similar values, we have also been careful not to equate the Confrontation Clause’s prohibitions with the general rule prohibiting the admission of hearsay statements. See California v. Green, 399 U. S. 149, 155-156 (1970); Dutton v. Evans, 400 U. S. 74, 86 (1970) (plurality opinion); United States v. Inadi, 475 U. S. 387, 393, n. 5 (1986). The Confrontation Clause, in other words, bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule. See, e. g., Green, supra, at 155-156; Bruton v. United States, 391 U. S. 123 (1968); Barber v. Page, 390 U. S. 719 (1968); Pointer, supra. In Ohio v. Roberts, we set forth “a general approach” for determining when incriminating statements admissible under an exception to the hearsay rule also meet the requirements of the Confrontation Clause. 448 U. S., at 65. We noted that the Confrontation Clause “operates in two separate ways to restrict the range of admissible hearsay.” Ibid. “First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case . . . , the prosecution must either produce, or demonstrate the unavailability of, the de-clarant whose statement it wishes to use against the defendant.” Ibid, (citations"
},
{
"docid": "22751088",
"title": "",
"text": "242-243. Cf. Hopt v. Utah, 110 U. S. 574, 581; Queen v. Hepburn, 7 Cranch 290, 295. This Court has recognized the admissibility against an accused of dying declarations, Mattox v. United States, 146 U. S. 140, 151, and of testimony of a deceased witness who has testified at a former' trial, Mattox v. United States, 156 U. S. 237, 240-244. See also Dowdell v. United States, supra, 221 U. S., at 330; Kirby v. United States, supra, 174 U. S., at 61. Nothing we hold here is to the contrary. The case before us would be quite a different one had Phillips’ statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine. Compare Motes v. United States, supra, 178 U. S., at 474. There are other analogous situations which might not fall within the scope of the constitutional rule requiring confrontation of witnesses. The case before us, however, does not present any situation like those mentioned above or others analogous to them. Because the transcript of Phillips’ statement offered against petitioner at his trial had not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity to cross-examine Phillips, its introduction in a federal court in a criminal case against Pointer would have amounted to denial of the privilege of confrontation guaranteed by the Sixth Amendment. Since we hold that the right of an accused to be confronted with the witnesses against him must be determined by the same standards whether the right is denied in a federal or state proceed ing, it follows that use of the transcript to convict petitioner denied him a constitutional right, and that his conviction must be reversed. Reversed and remanded. See state and English cases collected in 5 Wigmore, Evidence §§ 1367, 1395 (3d ed. 1940). State constitutional and statutory provisions similar to the Sixth Amendment are collected in 5 Wigmore, supra, § 1397, n. 1. Mr. Justice Harlan, concurring in the result. I agree that in the circumstances the admission"
},
{
"docid": "967334",
"title": "",
"text": "fact through extrajudicial statements. From the viewpoint of the Confrontation Clause, a witness under oath, subject to cross-examination, and whose demeanor can be observed by the trier of fact, is a reliable informant not only as to what he has seen but also as to what he has heard. Dutton v. Evans, 1970, 400 U.S. 74, 88, 91 S.Ct. 210, 27 L.Ed.2d 213, 226. . Pointer v. Texas, 1965, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923; see Dutton v. Evans, supra; Bruton v. United States, 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476; Barber v. Page, 1968, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255; Douglas v. Alabama, 1965, 380 U.S. 415, 418-419, 85 S.Ct. 1074, 13 L.Ed.2d 934; Parker v. Gladden, 1966, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420; Holman v. Washington, 5 Cir. 1966, 364 F.2d 618. . This Court has recognized the admissibility against an accused of dying declarations, Mattox v. United States, 146 U.S. 140, 151, 13 S.Ct. 50, 53, 36 L.Ed. 917, 921, and of testimony of a deceased witness who has testified at a former trial, Mattox v. United States, 156 U.S. 237, 240-244, 15 S.Ct. 337, 338-340, 39 L.Ed. 409, 410, 411. See also Dowdell v. United States, supra, 221 U.S. at 330, 31 S.Ct. at 592, 55 L.Ed. at 457; Kirby v. United States, supra, 174 U.S. at 61, 19 S.Ct. at 574, 43 L.Ed. at 896. * * * There are other analogous situations which might not fall within the scope of the constitutional rule requiring confrontation of witnesses. Pointer v. Texas, supra, 380 U.S. at 407, 85 S.Ct. 1065. . Q. Now then in accord with your conscience and before your God, son, you can’t say that in all truthfulness, positively that the man behind that man was not one or more, was not one of those men that you’ve seen with the same size, black hair and fair complexion, other than this defendant. Isn’t that correct? You can’t swear positively, isn’t that right? A. I can’t swear positive, but in"
}
] |
426114 | For the reasons explained more fully below, WOW’s motion to strike Plaintiffs’ class allegations is denied. Rule 23(c)(1)(A) provides that the court, “[a]t an early practicable time ... must determine by order whether to certify the action as a class action.” Fed.R.Civ.P. 23(c)(1)(A). Rule 23(d)(1)(D) provides that, “[i]n conducting an action under this rule, the court may issue orders that ... require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly.” Fed.R.Civ.P. 23(d)(1)(D). Courts in this district have held that a motion to strike class allegations, made pursuant to these provisions, can be an appropriate device to determine whether a case will proceed as a class action. See, e.g., REDACTED Moreover, in the right circumstances, such motions may properly be filed before plaintiffs move for class certification and before class discovery has been conducted. See, e.g., Wright v. Family Dollar, Inc., 2010 WL 4962838, at *1 (N.D.Ill. Nov. 30, 2010) (“[Gjiven that Rule 23(c)(1)(A) instructs courts to determine whether a class may be certified ‘[a]t an early practicable time,’ courts may — and should — address the plaintiff’s class allegations when the pleadings are facially defective and definitively establish that a class action cannot be maintained.”); Bd. of Educ. of Tp. High Sch. v. Climatemp, Inc., 1981 WL 2033, at *2, *5 (N.D.Ill. Feb. 20, 1981) (rejecting plaintiffs argument that it would be procedurally improper to entertain defendant’s motion to strike | [
{
"docid": "21932698",
"title": "",
"text": "of fraud, and must accordingly be pled with particularity that satisfies Rule 9(b). Eromon, 351 F.Supp.2d at 827; Duggan v. Terzakis, 275 F.Supp.2d 968, 972 (N.D.Ill.2003). To plead fraud with particularity, a plaintiff must provide the “who, what, when, where, and how” of his claim. DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.1990). Muehlbauer’s allegations are sufficient in this regard. He has alleged that defen dant failed to disclose that the vehicles were defective, and the defect, which should have been disclosed, is described with great specificity. He also alleges that defendant became aware of the defect as early as January 1999, which was 18 months before he bought his truck. Finally, Muehlbauer alleges that the defendant accomplished the fraud by not disclosing the alleged defect. Sufficiency of Class Allegations In addition to challenging the plaintiffs’ substantive allegations, defendant also has moved for a determination that the class alleged cannot be maintained on the grounds that it is not manageable under the federal rules or circuit authority. Defendant also argues that Muehlbauer seeks to represent individuals who lack standing, which precludes certification of the purported class for the ICFA claim. In response, plaintiffs emphasize that they have grouped the counts according to shared elements. They also offer an amended class definition so that only individuals with standing are represented. Plaintiffs do not object to our authority to review the class allegations at this early juncture. That authority stems from Rule 23(c)(1)(A) and (d)(4). Rule 23(c)(1)(A) provides that the court “at an early practicable time” must determine whether to certify the action as a class action. Rule 23(d)(4) authorizes the court to require “that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons.” At this stage we are not asked to certify the class. The parties have not engaged in discovery, and we do not fully embark on the familiar certification inquiry set forth in Rules 23(a) and (b). Defendant argues that the class allegations are facially deficient and no amount of discovery can save them. Plaintiffs do not argue that in the"
}
] | [
{
"docid": "20992757",
"title": "",
"text": "submitted responsive papers and the Court held oral argument on August 12, 2015. Counsel for ACME also submitted a motion to strike the declarations and exhibits attached to Plaintiffs’ response to the Order to Show Cause. The Court will first address the Amended Complaint’s class action allegations and then the pending motions to dismiss named Plaintiffs’ underlying claims. II. Plaintiffs’ Class Allegations The Court has the authority to strike class allegations at the pleading stage under Fed.R.Civ.P. 12(f) if the complaint demonstrates that a class action cannot be maintained. Smith v. Merial Ltd., No. 10-439, 2012 WL 2020361, at *6 (D.N.J. June 5, 2012). This Court has addressed and stricken class allegations at the pleading stage on defendants’ motions pursuant.to Fed.R.Civ.P. 12(f) when it becomes clear from the complaint that plaintiffs cannot meet the certification requirements of Rule 23. Id. at *4; see also Advanced Acupuncture Clinic, Inc. v. Allstate Ins. Co., No. 07-4925, 2008 WL 4056244 at *10 (D.N.J. Aug. 26, 2008) (granting motion to strike class allegations when it became clear injunctive relief under Rule 23(b)(2) was inappropriate); Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 n. 3 (D.N.J.2003) (“A defendant may move to strike class allegations prior to discovery in rare cases where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met.”). Rule 12(f) states in relevant part: The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (l)on its own; or (2)on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. Fed.R.Civ.P. 12(f). Although this Court typically has stricken class allegations pleadings on defendants’ motions pursuant to Rule 12(f)(2), subsection 12(f)(1) explicitly grants the Court authority to do the same without a defendant first filing a motion to strike. Furthermore, Rule 23(c)(1)(A) states that, “at an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the"
},
{
"docid": "6749189",
"title": "",
"text": "disabilities as that term has been defined by 42 U.S.C. [§ ] 12102(2), including those persons with a physical impairment that substantially limits a major life function, such as mobility, hearing and/or sight, who have been and who were, prior to the filing of this [action], denied the full and equal enjoyment of the goods, services, programs, facilities, privileges, advantages, or accommodations of any of the McDonald’s brand restaurants located in the United States, because of their respective disabilities.” (Am.Compl. ¶ 25.) . The Plaintiff Subclass is also defined as a \"subset of the Plaintiff Class” consisting of \"those Plaintiff Class members who reside in, travel to, and/or patronize or but for the violations herein complained of would patronize the McDonald’s brand restaurants located in the Subclass States.” (Am.Compl.¶ 26.) , A defendant may move to strike class action allegations prior to discovery in those rare cases where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met. See Miller v. Motorola, Inc., 76 F.R.D. 516 (N.D.Ill.1977) (granting motion to strike class action allegations on the basis of the complaint); see also Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct 2364, 72 L.Ed.2d 740 (1982) (\"Sometimes the issues are plain enough from the pleadings ..., and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.”); Illinois v. Climatemp, Inc., No. 79 C 4898, 1981 WL 2033, at *2, *5 (N.D.Ill. 1981) (rejecting plaintiff’s argument that it would be procedurally improper to entertain defendant’s motion to strike class action allegations in advance of a motion by plaintiff to certify class); Fed.R.Civ.P. 23(c)(1) (\"As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.”). . Access Today seeks injunctive relief, not monetary damages, to remedy the injuries it is alleged to have suffered. (See Tr. Oral Arg. of 1/28/03 at 29:24-30:1.) . It is also alleged that Access Today \"has been forced to"
},
{
"docid": "19116996",
"title": "",
"text": "WideOpen West Fin., LLC, 288 F.R.D. 407, 414 (N.D.Ill.2012); Hill v. Wells Fargo Bank, N.A., 946 F.Supp.2d 817, 829-33 (N.D.Ill. 2013); Bohn v. Boiron, Inc., No. 11 C 8704, 2013 WL 3975126, at *5 (N.D.Ill. Aug. 1, 2013). Rule 23(c)(1)(A) directs that “[a]t an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” Fed.R.Civ.P. 23(e)(1)(A). Although “[m]ost often it will not be ‘practicable’ for the court to do that at the pleading stage, ... sometimes the complaint will make it clear that class certification is inappropriate.” Hill, 946 F.Supp.2d at 829 (citing General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)); see also Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 563 (7th Cir.2011) (“Consistent with [Rule 23(e)(l)(A)’s] language, a court may deny class certification even before the plaintiff files a motion requesting certification.”). In those situations, a court may determine that class certification is inappropriate before the parties conduct class discovery. See Bohn, 2013 WL 3975126, at *5. If the plaintiffs class allegations are facially and inherently deficient, for example, “a motion to strike class allegations ... can be an appropriate device to determine whether [the] ease will proceed as a class action.” See Bohn, 2013 WL 3975126, at *5; Wolfkiel v. Intersections Ins. Servs. Inc., No. 13 C 7133, 2014 WL 866979, at *4 (N.D.Ill. Mar. 5, 2014); Wright v. Family Dollar, Inc., No. 10 C 4410, 2010 WL 4962838, at *1 (N.D.Ill. Nov. 30, 2010); Muehlbauer v. General Motors Corp., 431 F.Supp.2d 847, 870 (N.D.Ill. 2006). If, on the other hand, the dispute concerning class certification is factual in nature and “discovery is needed to determine whether a class should be certified,” a motion to strike the class allegations at the pleading stage is premature. See Wright, 2010 WL 4962838, at *1; Santiago v. RadioShack Corp., No. 11 C 3508, 2012 WL 934524, at *4 (N.D.Ill. Feb. 10, 2012) (similar); see also Boatwright v. Walgreen Co., No."
},
{
"docid": "3418581",
"title": "",
"text": "23(c)(1)(A) states that “[a]t an early practicable time after a person sues ... as a class representative, the court must determine by order whether to certify the action as a class action.” Fed.R.Civ.P. 23(c)(1)(A). The rule’s text plainly indicates that the court-may decide to reject a plaintiffs attempt to represent a class as soon as it becomes obvious that the plaintiff will be unable to satisfy Rule 23. Most often it will not be “practicable” for the court to do that at the pleading stage, but sometimes the complaint will make it clear that class certification is inappropriate. The Supreme Court has recognized as much: “Sometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiffs Claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). This is a case where “the issues are plain enough from the pleadings” to allow the court to conclude that no class can be certified. Pilgrim v. Universal Health Card, LLC, 660 F.3d 943 (6th Cir.2011), supports the view that rejecting class certification at the pleading stage is proper. The defendant in Pilgrim moved to strike the complaint’s class allegations, and the district court granted the motion. Id. at 945. On appeal, the plaintiffs contended that the district court had jumped the gun by ruling on class certification early on, when the plaintiffs still hoped to strengthen their case for certification through discovery. The Sixth Circuit disagreed: The plaintiffs’ other objection to the district court’s class-action ruling goes to the timing, not the substance, of it. Given more time and more discovery, they say, they would have been able to poke holes in the court’s class-certification analysis. We think not. That the motion to strike came before the plaintiffs had filed a motion to certify the class does not by itself make the court’s decision reversibly premature. Rule 23(c)(1)(A)"
},
{
"docid": "21507588",
"title": "",
"text": "a decision on class certification, thereby providing flexibility for choosing the most appropriate basis for deciding this case. Having noted the existence of certain jurisdictional issues without deciding them, I return to the nonjurisdictional grounds GMACM presently asserts for striking the class claims. 3. the request to strike the class claim is premature The various arguments made by GMACM in its motion to strike the class allegations all challenge, in one way or another, the Debtor’s ability to satisfy the Rule 23 standards for class certification. Coming, as it does, as part of a Rule 12(b)(6) motion to dismiss, I find the request to strike the class claim to be premature. Initially, I observe that a motion to strike class allegations is addressed in Rule 23(d)(1)(D), which provides that the court may “require that the pleadings be amended to eliminate allegations about representation of absent persons' and that the action proceed accordingly.” However, a Rule 23(d)(1)(D) motion to strike class allegations is designed to modify the pleadings only after the court has ascertained, in an earlier determination, that maintenance of a class action is inappropriate. E.g., Korman v. Walking Co., 503 F.Supp.2d 755, 762 (E.D.Pa.2007). Usually, that earlier determination would be the denial of motion for class certification. The general rule is that Rule 23(d)(1)(D) motions to strike class allegations “are premature and that the proper avenue is to oppose the plaintiffs motion for class certification.” Id.; accord, Silverman v. Smithkline Beecham Corp., 2007 WL 3072274, *2 (C.D.Cal. Oct. 16, 2007). There, however, is an exception to this principle. If there are valid grounds for striking the class claims that are distinct from the factors considered in a motion for class certification, the court may strike the class claims from the complaint. See Rahman v. Smith & Wollensky Restaurant Group, Inc., 2008 WL 161230, *3 (S.D.N.Y. Jan. 16, 2008); accord, In re Initial Public Offering Securities Litigation, 2008 WL 2050781, *2 (S.D.N.Y. May 13, 2008); Joseph M. McLaughlin, 1 McLaughlin on Class Actions § 3.4 (Westlaw 2008) (“motions to strike [class action allegations] should not be the norm but are"
},
{
"docid": "18061282",
"title": "",
"text": "denying Appellants’ request for leave to amend their complaint by primarily basing the denial on its erroneous interpretation of Wal-Mart. We reverse the district court’s decision in part and remand for the court to consider, consistent with this opinion, whether the proposed amended complaint satisfies the class certification requirements of Rule 23. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED . Family Dollar’s motion to dismiss and Appellants' motion for leave to amend the complaint were filed before the deadlines to end class certification discovery and to file a motion to certify the class. . Class certification is typically pursued under Rule 23(c), which provides that \"[a]t an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” Id. 23(c). Family Dollar filed its motion to dismiss pursuant to Rule 12(c), 12(f), and 23(d)(1)(D) — rules not expressly within Rule 23(f)'s jurisdictional purview. See Fed. R. Civ. Pro. 23(f) advisory comm, note (1998). Nonetheless, we have jurisdiction to review the district court’s grant of Family Dollar’s motion to dismiss or strike the class allegations because the district court’s ruling is the functional equivalent of denying a motion to certify the case as a class action. See In re Bemis Co., Inc., 279 F.3d 419, 421 (7th Cir.2002) (holding that the re jection of the position taken in the answer that the case could not proceed as a class action is the \"functional equivalent of denying a motion to certify a case as a class action”). Family Dollar does not dispute the basis for asserting jurisdiction over the class certification decision. . Under Rule 23, a class may be certified if (1) \"the class is so numerous that joinder of all members is impracticable” (numerosity); (2) there are one or more \"questions of law or fact common to the class” (commonality); (3) the named parties’ \"claims or defenses are typical of the claims or defense of the class” (typicality); and (4) the class representatives “will fairly and adequately protect the interests the"
},
{
"docid": "3418582",
"title": "",
"text": "where “the issues are plain enough from the pleadings” to allow the court to conclude that no class can be certified. Pilgrim v. Universal Health Card, LLC, 660 F.3d 943 (6th Cir.2011), supports the view that rejecting class certification at the pleading stage is proper. The defendant in Pilgrim moved to strike the complaint’s class allegations, and the district court granted the motion. Id. at 945. On appeal, the plaintiffs contended that the district court had jumped the gun by ruling on class certification early on, when the plaintiffs still hoped to strengthen their case for certification through discovery. The Sixth Circuit disagreed: The plaintiffs’ other objection to the district court’s class-action ruling goes to the timing, not the substance, of it. Given more time and more discovery, they say, they would have been able to poke holes in the court’s class-certification analysis. We think not. That the motion to strike came before the plaintiffs had filed a motion to certify the class does not by itself make the court’s decision reversibly premature. Rule 23(c)(1)(A) says that the district court should decide whether to certify a class “[a]t an early practicable time” in the litigation, and nothing in the rules says that the court must await a motion by the plaintiffs. As a result, “[e]ither plaintiff or defendant may move for a determination of whether the action may be certified under Rule 23(c)(1).” 7AA Charles [Alan] Wright et al., Federal Practice and Procedure § 1785; see also, e.g., Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 941-44 (9th Cir.2009); Cook County College Teachers Union, Local 1600 v. Byrd, 456 F.2d 882, 884-85 (7th Cir.1972). To say that a defendant may freely move for resolution of the class-certification question whenever it wishes does not free the district court from the duty of engaging in a “rigorous analysis” of the question, and “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The"
},
{
"docid": "3418580",
"title": "",
"text": "in the disjunctive, the Hills may proceed with their unfair conduct claim despite the absence of deceptive conduct. See Pappas v. Pella Corp., 863 Ill.App.3d 795, 300 Ill.Dec. 552, 844 N.E.2d 995, 1002-03 (2006). Accordingly, LPS’s motion to dismiss Count II is denied, though the Hills cannot proceed with their ICFA claim on a deceptive practices theory. II. Defendants’ Motion to Strike Class Allegations Defendants ask the court to reject the Hills’ putative class action by striking the amended complaint’s class allegations. The FDCPA claim has been dismissed and the ICFA claim cannot proceed on a deceptive conduct theory, so the court need consider only whether an ICFA unfair conduct class can proceed. Because the amended complaint’s class allegations preclude certification of the putative ICFA unfair conduct class, the motion to strike is granted. As a threshold matter, the Hills contend that no procedural mechanism empowers the court to decide at the pleading stage whether the suit will be permitted to proceed as a class action. Doc. 60 at 4-8. The Hills are incorrect. Rule 23(c)(1)(A) states that “[a]t an early practicable time after a person sues ... as a class representative, the court must determine by order whether to certify the action as a class action.” Fed.R.Civ.P. 23(c)(1)(A). The rule’s text plainly indicates that the court-may decide to reject a plaintiffs attempt to represent a class as soon as it becomes obvious that the plaintiff will be unable to satisfy Rule 23. Most often it will not be “practicable” for the court to do that at the pleading stage, but sometimes the complaint will make it clear that class certification is inappropriate. The Supreme Court has recognized as much: “Sometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiffs Claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). This is a case"
},
{
"docid": "4079968",
"title": "",
"text": "actively concealed the nature of the defective products. (Id. 1191). Plaintiffs contend that Viking actively continued to conceal the defective nature of the Window Products up until the filing of the complaint in this action. (Id. H 95). As such, plaintiffs have alleged what representations and omissions were made by Viking to plaintiffs, why Viking had a duty to state the facts it omitted, and the particular manner in which the statements made by Viking were false. (Compl.HH 15- 18, 28, 89-97). Thus, plaintiffs have adequately put Viking on notice of the particular misconduct which forms the basis of their claim for fraud. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003) (quoting Decker v. GlenFed, Inc., 42 F.3d 1541, 1548 (9th Cir.1994)) (emphasis in original). Therefore, defendant’s motion to dismiss plaintiffs’ claim for fraud is DENIED. B. Plaintiffs’ Motion for Discovery Pursuant to Rule 26(d) Plaintiffs move the court for an order permitting them to conduct discovery related to class certification'issues pursuant to Federal Rule of Civil Procedure 26(d). Plaintiffs claim the order is necessary to allow the plaintiffs to make a timely class certification motion under Rule 23. Rule 23(c)(1) requires that: “[a]t an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” Fed.R.Civ.P. 23(e)(1). Rule 23, standing alone, does not provide good cause for expedited discovery because class certification can still be made “at an early practicable time” in the normal course of the litigation. This court finds that plaintiffs’ Rule 26(d) motion is premature. Discovery issues will be decided after the parties have filed their Joint Status Report, proposing dates for discovery and deadlines for dispositive motions. Accordingly, plaintiffs’ motion for expedited discovery is DENIED. CONCLUSION For the foregoing reasons, defendant’s motion to dismiss plaintiffs’ complaint is DENIED and plaintiffs’ motion to permit expedited discovery is DENIED. IT IS SO ORDERED. . All further references to a \"Rule” are to the Federal Rules of Civil Procedure. . Because oral argument will not be"
},
{
"docid": "6285952",
"title": "",
"text": "to encompass all of Plaintiffs other claims, and the court dismisses it as duplicative. C. Class Action Allegations Plaintiff rests his class action allegations on the same six theories identified above— Title VII and § 1981 claims for failure to promote, constructive discharge, hostile work environment, pay disparity, failure to hire, and terms and conditions of employment. Defendant asks the court to strike the allegations because they cannot meet the requirements of Fed.R.Civ.P. 23. The court agrees. The class action is “designed as ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’” Gen Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (citation omitted). Rule 23(c)(1) of the Federal Rules of Civil Procedure reads that “[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” Fed.R.Civ.P. 23(c)(1). The court need not wait for a motion for class certification if “the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiffs claims.” Falcon, 457 U.S. at 160, 102 S.Ct. 2364. Federal courts have used motions to strike to test the viability of a class at the earliest pleading stage of the litigation. See, e.g., Thompson v. Merck & Co., No. 01-1004, 2004 WL 62710, at *2 (E.D.Pa. Jan. 6, 2004); Riley v. Compucom Sys., Inc., No. CIV. A398CV1876L, 2000 WL 343189, at *1 (N.D.Tex. Mar. 31, 2000); Lumpkin v. E.I. Du Pont de Nemours & Co., 161 F.R.D. 480, 481 (M.D.Ga.1995). Rule 23 authorizes courts to enter an order “requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly.” Fed.R.Civ.P. 23(d)(4). The burden of showing that each element of Rule 23 has been met remains with the party seeking class treatment, even if the opposing party raises the viability issue. Lumpkin, 161 F.R.D. at 481. The court should not"
},
{
"docid": "20204060",
"title": "",
"text": "to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly.”); Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 n. 3 (D.N.J.2003). However, dismissal of class allegations is only appropriate in “rare cases where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met.” Myers v. MedQuist, Inc., 05-cv-4608, 2006 WL 3751210, at *4 (D.N.J. Dec. 20, 2006) (quoting Strzakowlski v. General Motors Corp., 04-cv-4740, 2005 WL 2001912, *8, 2005 U.S. Dist. LEXIS 18111, *26 (D.N.J. Aug. 16, 2005)). This is not that rare case. BMWNA makes cogent arguments — for example, that individual driving histories may be dispositive, and that therefore individual claims may predominate over those that can be adjudicated en masse. At this early stage, however, I cannot assume or conclude that such arguments have a sufficient basis in fact. I will deny BMWNA’s motion to dismiss Plaintiffs class allegations. Class certification is to be decided “at an early practicable time,” Fed.R.Civ.P. 23(c)(1)(A) — i.e., as early as possible, but not earlier. At this early stage, I cannot be confident that a grant or denial of class certification would be well founded. Plaintiff has pleaded sufficient facts to go forward. The Court will address the certification issues in due course, on a motion for class certification made under Rule 23(c) after the parties have had the opportunity to conduct necessary discovery. IV. CONCLUSION For the foregoing reasons, BMWNA’s motion to dismiss the Complaint is DENIED. An appropriate order will be filed with this opinion. . BMWNA disclaims reliance on any distinction between leases and purchases for these purposes. . The parties agree that Florida law applies to these warranty and contract claims. That stipulation appears to be well founded. This court applies the conflicts law of New Jersey, the state in which it sits. See Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). New Jersey fol lows the “most significant relationship” test of the Restatement (Second) of Conflict of Laws. P.V. v. Camp Jaycee, 197 N.J. 132, 142-43, 962"
},
{
"docid": "20992758",
"title": "",
"text": "under Rule 23(b)(2) was inappropriate); Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 n. 3 (D.N.J.2003) (“A defendant may move to strike class allegations prior to discovery in rare cases where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met.”). Rule 12(f) states in relevant part: The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (l)on its own; or (2)on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. Fed.R.Civ.P. 12(f). Although this Court typically has stricken class allegations pleadings on defendants’ motions pursuant to Rule 12(f)(2), subsection 12(f)(1) explicitly grants the Court authority to do the same without a defendant first filing a motion to strike. Furthermore, Rule 23(c)(1)(A) states that, “at an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” Based on the pleadings in these cases, the Court found it appropriate to consider Plaintiffs’ class allegations sua sponte and thus issued the aforementioned Order to Show Cause. Plaintiffs claim to satisfy certification requirements under either 23(b)(2) or (3). Rule 23(b) states, in pertinent part: A class action may be maintained if Rule 23(a) is satisfied and if: (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation con cerning the"
},
{
"docid": "2260940",
"title": "",
"text": "OPINION AND ORDER CRABB, District Judge. This is a civil action for monetary relief brought pursuant to 42 U.S.C. § 1983. Plaintiffs David Blihovde, Travis Brecher and Renee Houser and all others similarly situated allege that defendants Mark Volz, Kristen Anderson, Terry Larson, Lisa Opel, Shelby Lane and John and Jane Does 1-30 subjected plaintiffs to strip searches without reasonable suspicion in violation of the Fourth and Fourteenth Amendments. In addition, plaintiffs allege that the individual defendants acted pursuant to a custom or policy of defendants St. Croix County, Dennis Hillstead and Karen Humphrey to strip search all arrestees at the St. Croix County jail without individualized suspicion. Jurisdiction is present under 28 U.S.C. § 1331. Presently before the court is defendants’ “Motion to Strike Request to Certify Class.” Plaintiffs argue initially that defendants’ motion is “premature” because plaintiffs have not yet moved to certify the class. It is true that in most cases involving a proposed class, it is the plaintiffs who move for class certification. 5 James Wm. Moore, Moore’s Federal Practice § 23.61[6][a] at 23-280.2 (3d ed.2002). However, under Fed.R.Civ.P. 23(c)(1), either party may ask the court to determine whether class certification is appropriate. Cook County College Teachers Union v. Byrd, 456 F.2d 882, 885 (7th Cir.1972); 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1785 at 89 (2d ed.1986); see also Bieneman v. City of Chicago, 838 F.2d 962, 964 (7th Cir.1988) (if neither party moves, court must determine class certification on its own). Although there is nothing procedurally improper about defendants’ motion, I conclude that it is mislabeled. Generally, in a motion to strike under Fed.R.Civ.P. 12(f), a party argues that portions of the pleadings are facially improper. See Codest Engineering v. Hyatt International Corp., 954 F.Supp. 1224, 1228 (N.D.Ill.1996) (motion to strike granted only if it is impossible that opposing party could prove set of facts consistent with its allegation). However, both parties have cited a number of materials outside the pleadings to support their positions. Accordingly, I will construe defendants’ motion as one for denial"
},
{
"docid": "20204059",
"title": "",
"text": "relevant time period. (Id. at ¶ 29.) Plaintiff also alleges that there are common questions of law and fact (id. at ¶ 30), that his claims are typical of the claims of members of the class (id. at ¶ 31), and that he will fairly and adequately protect the interests of the members of the class. (Id. at ¶ 32.) BMWNA responds that Plaintiffs class allegations are facially unsustainable under Fed. R. Civ. P. 23 and must be dismissed. Specifically, BMWNA argues that individual issues of causation predominate over any common issues of law or fact. It is true that class allegations may sometimes be so facially deficient that a court can dismiss them on a Rule 12(b)(6) motion. See General Tele. Co. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (“[S]ometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiffs claim....”); Fed. R. Civ. P. 23(d)(4) (courts can order “that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly.”); Clark v. McDonald’s Corp., 213 F.R.D. 198, 205 n. 3 (D.N.J.2003). However, dismissal of class allegations is only appropriate in “rare cases where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met.” Myers v. MedQuist, Inc., 05-cv-4608, 2006 WL 3751210, at *4 (D.N.J. Dec. 20, 2006) (quoting Strzakowlski v. General Motors Corp., 04-cv-4740, 2005 WL 2001912, *8, 2005 U.S. Dist. LEXIS 18111, *26 (D.N.J. Aug. 16, 2005)). This is not that rare case. BMWNA makes cogent arguments — for example, that individual driving histories may be dispositive, and that therefore individual claims may predominate over those that can be adjudicated en masse. At this early stage, however, I cannot assume or conclude that such arguments have a sufficient basis in fact. I will deny BMWNA’s motion to dismiss Plaintiffs class allegations. Class certification is to be decided “at an early practicable time,” Fed.R.Civ.P. 23(c)(1)(A) — i.e., as early as possible, but not earlier."
},
{
"docid": "19309532",
"title": "",
"text": "can be resolved “through the unitary application of Louisiana law” and asserting that “as long as no out-of-state plaintiff gets less protee tion under its states’ laws and Defendants are subject to Louisiana law, there should be no objection to the unitary application of Louisiana law.”). III. ANALYSIS A. Timing of Defendants’ Motion to Strike or Dismiss Plaintiff contends that defendants’ motion to strike or dismiss is premature because the filing of other class actions in states across the country could somehow resolve the deficiencies identified by the defendants (Doc. 32 p. 8). Otherwise plaintiff does not raise any objections with regard to the timing of defendants’ motion. In particular, plaintiff does not contend that discovery would resolve the identified deficiencies in the class allegations or that the Court cannot obtain a full assessment of the litigation at this time. Instead, plaintiff contends that her class allegations are adequate. In the instant case, defendants have identified numerous facial deficiencies in the class allegations; no amount of time or discovery can cure these deficiencies. Plaintiffs argument with regard to the filing of additional class actions in other states is unavailing for the same reason. After reviewing the parties’ briefs and the allegations in the first amended complaint, it is obvious from the pleadings that no class action can be maintained. Accordingly, the Court properly proceeds with its ruling on defendants’ motion to strike or dismiss plaintiffs class allegations. See Rule 23(e)(1)(A) (providing that the court, “[a]t an early practicable time ..., must determine by order whether to certify the action as a class action”); Rule 23(d)(1)(D) (“In conducting an action under this rule, the court may issue orders that ... require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly.”). See also e.g., Wright v. Family Dollar, Inc., 2010 WL 4962838, *1 (N.D.Ill. Nov. 30, 2010) (Gettleman, J.) (considering defendant’s motion to strike class allegations and noting that the “early practicable time” directive indicates that “courts may-and should-address the plaintiffs class allegations when the pleadings are facially defective and definitively establish"
},
{
"docid": "19116997",
"title": "",
"text": "inappropriate before the parties conduct class discovery. See Bohn, 2013 WL 3975126, at *5. If the plaintiffs class allegations are facially and inherently deficient, for example, “a motion to strike class allegations ... can be an appropriate device to determine whether [the] ease will proceed as a class action.” See Bohn, 2013 WL 3975126, at *5; Wolfkiel v. Intersections Ins. Servs. Inc., No. 13 C 7133, 2014 WL 866979, at *4 (N.D.Ill. Mar. 5, 2014); Wright v. Family Dollar, Inc., No. 10 C 4410, 2010 WL 4962838, at *1 (N.D.Ill. Nov. 30, 2010); Muehlbauer v. General Motors Corp., 431 F.Supp.2d 847, 870 (N.D.Ill. 2006). If, on the other hand, the dispute concerning class certification is factual in nature and “discovery is needed to determine whether a class should be certified,” a motion to strike the class allegations at the pleading stage is premature. See Wright, 2010 WL 4962838, at *1; Santiago v. RadioShack Corp., No. 11 C 3508, 2012 WL 934524, at *4 (N.D.Ill. Feb. 10, 2012) (similar); see also Boatwright v. Walgreen Co., No. 10 C 3902, 2011 WL 843898, at *2 (N.D.Ill. Mar. 4, 2011) (“Because a class determination decision generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action, ... a decision denying class status by striking class allegations at the pleading stage is inappropriate.”). To obtain class certification under Rule 23, a plaintiff must satisfy the requirements of Rule 23(a) — numerosity, commonality, typicality, and adequacy of representation — and one subsection of Rule 23(b). See Harper v. Sheriff of Cook County, 581 F.3d 511, 513 (7th Cir.2009); Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir.2006). In this case, Buonomo seeks class certification pursuant to Rule 23(b)(3) and Rule 23(b)(2). (See Am. Compl. ¶¶ 40-50.) Rule 23(b)(2) allows class certification where the “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole,” Fed.R.Civ.P. 23(b)(2), and Rule 23(b)(3) allows class certification"
},
{
"docid": "19116995",
"title": "",
"text": "called party with respect to the subject matter of the alleged debt being collected (for example, where the number was obtained through skip tracing or captured by the defendant’s equipment from an inbound call, defendant was calling a wrong number or defendant was requested to stop calling). (Id. ¶ 40.) Buonomo also seeks certification of a subclass of “persons who requested that [Optimum] cease and desist and/or notified [Optimum] that it was calling the wrong number.” (Id.) Optimum argues that Buo-nomo’s class allegations fail to satisfy Federal Rule of Civil Procedure 23’s requirements as a matter of law and moves to strike them from the Amended Complaint. (See R. 45, Mot. to Strike.) LEGAL STANDARD Buonomo argues that Rule 12(f), which allows the Court to strike “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter,” see Fed. R.Civ.P. 12(f), governs Optimum’s motion to strike. (See R. 57, Pl. Resp. Br. at 2-3.) Courts in this District, however, evaluate motions to strike class allegations under Rule 23, not Rule 12(f). See, e.g., Valentine v. WideOpen West Fin., LLC, 288 F.R.D. 407, 414 (N.D.Ill.2012); Hill v. Wells Fargo Bank, N.A., 946 F.Supp.2d 817, 829-33 (N.D.Ill. 2013); Bohn v. Boiron, Inc., No. 11 C 8704, 2013 WL 3975126, at *5 (N.D.Ill. Aug. 1, 2013). Rule 23(c)(1)(A) directs that “[a]t an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” Fed.R.Civ.P. 23(e)(1)(A). Although “[m]ost often it will not be ‘practicable’ for the court to do that at the pleading stage, ... sometimes the complaint will make it clear that class certification is inappropriate.” Hill, 946 F.Supp.2d at 829 (citing General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)); see also Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 563 (7th Cir.2011) (“Consistent with [Rule 23(e)(l)(A)’s] language, a court may deny class certification even before the plaintiff files a motion requesting certification.”). In those situations, a court may determine that class certification is"
},
{
"docid": "19309533",
"title": "",
"text": "with regard to the filing of additional class actions in other states is unavailing for the same reason. After reviewing the parties’ briefs and the allegations in the first amended complaint, it is obvious from the pleadings that no class action can be maintained. Accordingly, the Court properly proceeds with its ruling on defendants’ motion to strike or dismiss plaintiffs class allegations. See Rule 23(e)(1)(A) (providing that the court, “[a]t an early practicable time ..., must determine by order whether to certify the action as a class action”); Rule 23(d)(1)(D) (“In conducting an action under this rule, the court may issue orders that ... require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly.”). See also e.g., Wright v. Family Dollar, Inc., 2010 WL 4962838, *1 (N.D.Ill. Nov. 30, 2010) (Gettleman, J.) (considering defendant’s motion to strike class allegations and noting that the “early practicable time” directive indicates that “courts may-and should-address the plaintiffs class allegations when the pleadings are facially defective and definitively establish that a class action cannot be maintained”). B. Overview Rule 23 requires a two-step analysis to determine whether class certification is appropriate. First, plaintiffs must satisfy all four requirements of Rule 23(a): (1) numer-osity; (2) commonality; (3) typicality; and (4) adequacy of representation. Failure to meet any one of these four requirements precludes class certification. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). Further, plaintiffs must satisfy at least one provision of Rule 23(b). In the instant case, plaintiff seeks monetary damages and therefore must satisfy the predominance and manageability requirements of Rule 23(b)(3). Here, the Court’s analysis begins and ends with Rule 23(b)(3); it is evident that individual questions of law and fact predominate, and therefore the case is not manageable as a nationwide or statewide class action. Given that the putative classes do not meet Rule 23(b)(3)’s predominance and manageability requirements, the Court need not address whether the putative classes meet Rule 23(a)’s requirements. Rule 23(b)(3)’s predominance and manageability requirements also preclude any proposed “issue” certification under Rule 23(e) (4)."
},
{
"docid": "6749190",
"title": "",
"text": "strike class action allegations on the basis of the complaint); see also Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct 2364, 72 L.Ed.2d 740 (1982) (\"Sometimes the issues are plain enough from the pleadings ..., and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.”); Illinois v. Climatemp, Inc., No. 79 C 4898, 1981 WL 2033, at *2, *5 (N.D.Ill. 1981) (rejecting plaintiff’s argument that it would be procedurally improper to entertain defendant’s motion to strike class action allegations in advance of a motion by plaintiff to certify class); Fed.R.Civ.P. 23(c)(1) (\"As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.”). . Access Today seeks injunctive relief, not monetary damages, to remedy the injuries it is alleged to have suffered. (See Tr. Oral Arg. of 1/28/03 at 29:24-30:1.) . It is also alleged that Access Today \"has been forced to divert resources from educational, informational, and counseling functions, towards its effort to combat Defendants’ widespread discriminatory practices through legal proceedings.” (Am. Compl. H 54; see also id. H 55(d).) The argument advanced by the Defendants focuses on this allegation to the exclusion of the above-quoted ones. . The private enforcement provision of Title III reads in full, as follows: (a) In general (1) Availability of remedies and procedures The remedies and procedures set forth in section 2000a 3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 12183 of this title. Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions. (2) Injunctive"
},
{
"docid": "2260941",
"title": "",
"text": "23.61[6][a] at 23-280.2 (3d ed.2002). However, under Fed.R.Civ.P. 23(c)(1), either party may ask the court to determine whether class certification is appropriate. Cook County College Teachers Union v. Byrd, 456 F.2d 882, 885 (7th Cir.1972); 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1785 at 89 (2d ed.1986); see also Bieneman v. City of Chicago, 838 F.2d 962, 964 (7th Cir.1988) (if neither party moves, court must determine class certification on its own). Although there is nothing procedurally improper about defendants’ motion, I conclude that it is mislabeled. Generally, in a motion to strike under Fed.R.Civ.P. 12(f), a party argues that portions of the pleadings are facially improper. See Codest Engineering v. Hyatt International Corp., 954 F.Supp. 1224, 1228 (N.D.Ill.1996) (motion to strike granted only if it is impossible that opposing party could prove set of facts consistent with its allegation). However, both parties have cited a number of materials outside the pleadings to support their positions. Accordingly, I will construe defendants’ motion as one for denial of class certification under Rule 23(c)(1). Defendants’ motion to deny class certification will be granted in part and denied in part. Because plaintiffs’ claims against the individual defendants in their personal capacities are not typical of the claims of other class members, class certification on those claims is not appropriate. With respect to plaintiffs’ claims against defendant St. Croix County and defendants Hillstead and Humphrey in their official capacities, I conclude that plaintiffs have satisfied the requirements for class certification under Rule 23(a) and (b)(3). However, if plaintiffs fail to ultimately prove that defendants had a policy or custom regarding strip searches that violated the Fourth Amendment, I will decertify the class and each plaintiff will have to prove liability individually. Furthermore, I will stay a decision whether to certify the issue of damages until liability has been determined. For the sole purpose of deciding these motions, I find that plaintiffs’ complaint fairly alleges the following. ALLEGATIONS OF FACT Plaintiffs David Blihovde, Travis Brecher and Renee Houser are all residents of St. Croix County, Wisconsin."
}
] |
227596 | that prevents courts of law from undertaking tasks assigned to the political branches.” Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The point of the standing inquiry is to ensure not only that the parties have a “personal stake” in the outcome but also to ensure that the courts do not extend their reach into the province of the legislative and executive branches. Valley Forge, 454 U.S. at 473-74, 102 S.Ct. 752. To establish standing, Plaintiff must first show that it has suffered or will suffer an “injury in fact” — an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. REDACTED Allegations of speculative future injury do not suffice. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). A future injury satisfies the “imminence” requirement only if the injury is “certainly impending.” Lujan, 504 U.S. at 565 n. 2, 112 S.Ct. 2130. Second, to show that the alleged injury is “fairly traceable” to the challenged action, the plaintiffs must make a reasonable showing that “but for” defendant’s action the alleged injury would not have not occurred. Warth v. Seldin, 422 U.S. 490, 504, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Ellsworth Assocs. v. United States, 926 F.Supp. 207 (D.D.C.1996) (contractor lacked standing to challenge constitutionality of SBA set-aside | [
{
"docid": "22657804",
"title": "",
"text": "part of the case-or-controversy requirement of Article III. See, e. g., Allen v. Wright, 468 U. S. 737, 751 (1984). Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U. S. 490, 508 (1975); Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972); and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U. S. 95, 102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not. .. th[e] result [of] the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 41-42 (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id., at 38, 43. The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U. S. 215, 231 (1990); Warth, supra, at 508. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i. e., with the manner and degree of evidence required at the successive stages of the litigation. See Lujan v. National Wildlife Federation, 497 U. S. 871, 883-889 (1990); Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 114-115, and n. 31 (1979); Simon, supra, at 45, n. 25; Warth, supra, at 527, and n. 6 (Brennan, J., dissenting). At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we “presum[e] that general allegations embrace those specific"
}
] | [
{
"docid": "1214797",
"title": "",
"text": "which version of the ordinances should be addressed. I. Preliminary issues A. Standing Defendant argues that all plaintiffs lack standing to bring this lawsuit. Courts have identified two types of standing, constitutional and prudential, and defendant contends that plaintiffs fail to meet the requirements of either type. We will address each in turn. 1. Constitutional Standing “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). Standing provides “justiciability: whether the plaintiff has made out a ‘case or controversy’ between himself and the defendant within the meaning of Art. III.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The Supreme Court has held that “the standing question in its Art. Ill aspect is whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.’ ” Simon, 426 U.S. at 38, 96 S.Ct. 1917 (quoting Warth, 422 U.S. at 498-99, 95 S.Ct. 2197). The Court has described three elements that comprise the “irreducible constitutional minimum of standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Edüd 351 (1992). A plaintiff must first “have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized [citations omitted] and (b) ‘actual or imminent’, not ‘conjectural or hypothetical.’ ” Id. (quoting Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). The injury suffered by the plaintiff must also be causally connected to the conduct of which the plaintiff complains: “the injury has to be ‘fairly ... trace[able] to the challenged action of the defendant, and not ... the result [of] the independent action of some third party not before the court.’ ” Id. (quoting Simon, 426 U.S. at 41-42, 96"
},
{
"docid": "9931256",
"title": "",
"text": "Fact To demonstrate an injury in fact, Plaintiffs must allege an “invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks and citations omitted); see also Pac. Capital Bank, 542 F.3d at 350. To show that an injury is “concrete and particularized,” Plaintiffs must allege “that [they] personally ha[ve] suffered some actual or threatened injury as a result of the putatively illegal conduct of’ Defendants. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (internal quotation marks omitted); see also Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. 2130 (“[T]he injury must affect the plaintiff in a personal and individual way.”). For an injury to be “actual or imminent,” Plaintiffs must show “that [they] ha[ve] sustained or [are] immediately in danger of sustaining some direct injury,” City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (internal quotation marks omitted), that is not “conjectural or hypothetical,” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks omitted); see also Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir.2006). “Allegations of possible future injury do not satisfy the requirements of Artficle] III.” Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). Instead, the threat of future injury must be “sufficiently real and immediate [so as] to show an existing controversy.” Lyons, 461 U.S. at 103, 103 S.Ct. 1660 (internal quotation marks omitted). Mosdos and YCC argue that they have suffered “clear[ ], ... demonstrable harm” from the delay in their ability to operate Kiryas Radin. (Mem. of Law in Opp. to Defs.’ Mot. to Dismiss (“Pis.’ Mem.”) 11.) The Court agrees. Specifically, Plaintiffs Mosdos and YCC have sufficiently alleged that they personally and actually suffered injury, as they jointly claim an interest in operating Kiryas Ra-din on the Nike Site, and they have been barred from doing so, despite spending money"
},
{
"docid": "18689180",
"title": "",
"text": "the necessity ‘to adjudge the legal rights of litigants in actual controversies.’ ” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757-58, 70 L.Ed.2d 700 (1982) (quoting Liverpool S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885)). The doctrine of standing serves to identify those disputes that satisfy the case-or-controversy requirement of Article III. The party invoking federal jurisdiction bears the burden of establishing standing to sue. Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975). [3] First, the plaintiff must have suffered an “injury in fact.” The Supreme Court has made clear that the injury must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, — U.S. -, -, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). If the injury is not actual, but imminent, the plaintiff cannot simply allege possible injury at some indefinite, future time. Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 1724, 109 L.Ed.2d 135 (1990). The Supreme Court acknowledges that “ ‘imminence’ is concededly a somewhat elastic concept,” but stresses that the purpose of the requirement “is to insure that the alleged injury is not too speculative for Article III purposes—that the injury is ‘certainly impending.’ ” Lujan, — U.S. at - n. 2, 112 S.Ct. at 2139 n. 2 (quoting Whitmore, 495 U.S. at 158, 110 S.Ct. at 1724). Next, the litigant must show that the injury is “fairly ... trace[able] to the challenged action” and “is likely to be redressed by a favorable decision.” Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41, 38, 96 S.Ct. 1917, 1926, 1924, 48 L.Ed.2d 450 (1976). In Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), a non-minority medical school applicant challenged the University’s affirmative action program. The Court found that Bakke did not have to show that in the absence of the program he would"
},
{
"docid": "23389369",
"title": "",
"text": "behalf.” Warth, 422 U.S. at 498-99, 95 S.Ct. 2197 (citing Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). The plaintiff bears the burden of meeting the “irreducible constitutional minimum” of Article III standing by establishing three elements: First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotations, alterations, and citations omitted). We have recognized that of the three required elements of constitutional standing, “the injury-in-fact element is often determinative.” Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 138 (3d Cir.2009). To satisfy this requirement, the alleged injury must be “particularized,” in that it “must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. 2130. “[T]he ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Id. at 563, 112 S.Ct. 2130 (quoting Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). The injury must also be “an invasion of a legally protected interest.” Id. at 560, 112 S.Ct. 2130. Since “standing is not dispensed in gross,” Lewis v. Casey, 518 U.S. 343, 358 n. 6, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), a plaintiff who raises multiple causes of action “must demonstrate standing for each claim he seeks to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). Furthermore, “the standing inquiry"
},
{
"docid": "3641489",
"title": "",
"text": "we first consider, as to each claim, whether the plaintiff carried her initial burden of establishing standing. We then proceed to a mootness inquiry if — and only if — that answer is in the affirmative. Cf. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (explaining that standing is a “threshold question in every federal case”). A. Standing. Standing involves both constitutional imperatives and prudential considerations. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). An inquiry into standing must be based on the facts as they existed when the action was commenced. Mangual v. Rotger-Sabat, 317 F.3d 45, 56 (1st Cir.2003). To satisfy Article Ill’s “personal stake” requirement vis-á-vis a statutory challenge, the plaintiff bears the burden of demonstrating that (i) she has suffered an actual or threatened injury in fact, which is (ii) fairly traceable to the statute, and (iii) can be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Lewis, 494 U.S. at 477, 110 S.Ct. 1249. Allegations of abstract injury are insufficient to make out an injury in fact. Instead, the plaintiff “must show that he has sustained or is immediately in danger of sustaining some direct injury.” Lyons, 461 U.S. at 101-02, 103 S.Ct. 1660 (citations and internal quotation marks omitted). Moreover, she must show that the injury or threat of injury is both real and immediate. Id. at 102, 103 S.Ct. 1660 (citations and internal quotation marks omitted). In addition to these constitutional requirements, prudential considerations must be taken into account. In general— there are exceptions, but we need not discuss them here — prudential concerns require a plaintiff to show that she is seeking to protect her own legal rights (rather than those of a third party), that her complaint does not merely represent a generalized grievance, and that the complaint falls within the zone of interests protected by the law invoked. See N.H. Right to Life, 99"
},
{
"docid": "7585126",
"title": "",
"text": "of the basic charter promulgated by the Framers of the Constitution.’ ” Utah v. Babbitt, 137 F.3d 1193, 1202 (10th Cir.1998) (quoting Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 476, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)). In light of the constitutional gravity of the standing requirements, “the assumption that if [the plaintiffs] have no standing to sue, no one would have standing, is not a reason to find standing.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974). The “irreducible constitutional minimum of standing” consists of three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, (b) actual or imminent, not “conjectural” or “hypothetical.” Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court. Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be redressed by a favorable decision. Id. at 560-61, 112 S.Ct. 2130 (internal quotations and citations omitted). Aside from Article III standing requirements, there are additional prudential limits on standing. See Mount Evans Co. v. Madigan, 14 F.3d 1444, 1451 (10th Cir.1994). First, “the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Second, even where the plaintiff has met the constitutional standing requirements, courts should “refrain[ ] from adjudicating ‘abstract questions of wide public significance’ which amount to ‘generalized grievances/ pervasively shared and most appropriately addressed in the representative branches.” Valley Forge, 454 U.S. at 475, 102 S.Ct. 752"
},
{
"docid": "10731230",
"title": "",
"text": "original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Constitutional standing ensures that litigants are truly adverse to one another and are not merely “suitors in the courts of the United States.” Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 476, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (“In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”). “The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, — U.S. -, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013); see also William A. Fletcher, The Structure of Standing, 98 Yale L.J. 221, 222 (1988) (explaining that a concrete dispute “informs the court of the consequences of its decisions” and prevents “the anti-majoritarian federal judiciary from usurping the policy-making functions of the popularly elected branches”). The case before us concerns the injury-in-fact requirement. The requisite injury-in-fact is an “invasion of a legally protected interest.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130. That injury must be “particularized,” id., and “concrete in both a qualitative and temporal sense,” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). That injury must also be “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 [quoting Whitmore, 495 U.S. at 155, 110 S.Ct. 1717) (internal quotation marks omitted). A risk of future injury may support standing if the threatened harm is “certainly impending,” or there is a “ ‘substantial risk’ ” that the harm will occur. Clapper, 133 S.Ct. at 1148, 1150 n. 5 (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 153, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010)). Standing requires that the party seeking to invoke federal jurisdiction “demonstrate"
},
{
"docid": "15376306",
"title": "",
"text": "welfare,” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 487, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), and are not “continuing monitors of the wisdom and soundness of Executive action,” Allen v. Wright, 468 U.S. 737, 760, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (internal quotation marks omitted). The Court therefore has insisted “upon meaningful limitations on what constitutes injury for standing purposes” because of “the key role that injury plays in restrict ing the courts to their proper function in a limited and separated government.” John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 Duke L. J. 1219, 1224 (1993). Injury in fact is the “invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks, citations, and footnote omitted). The Supreme Court has “emphasized repeatedly” that the alleged injury “must be concrete in both a qualitative and temporal sense. The complainant must allege an injury to himself that is distinct and palpable, as opposed to merely abstract, and the alleged harm must be actual or imminent, not conjectural or hypothetical.” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (internal quotation marks, citations and alteration omitted). We evaluate Public Citizen’s claim under the three requirements of injury-in-fact as the Court in Lujan articulated them— namely, the requirements that the asserted injury be (1) concrete, (2) particularized, and (3) actual or imminent. 1. The Supreme Court has stated that the asserted injury must be concrete—which the Court has also described as direct, real, and palpable—not abstract. See, e.g., Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (“concrete”); Whitmore, 495 U.S. at 155, 110 S.Ct. 1717 (“palpable, as opposed to merely abstract”); Allen, 468 U.S. at 751, 104 S.Ct. 3315 (“palpable”); City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (“real”); Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)"
},
{
"docid": "7899476",
"title": "",
"text": "Lancaster County Sch. Dist., 62 F.3d 1040, 1045 (8th Cir.1995). The standing doctrine incorporates both constitutional requirements and prudential considerations, and serves to limit federal jurisdiction to “cases” and “controversies” as required by Article III of the U.S. Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The constitutional prerequisite has been distilled into the following test: First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 560-61, 112 S.Ct. 2130 (internal quotations and citations omitted). A plaintiff may also be denied standing, even if he meets the Article III standing requirements, if he runs afoul of certain judicially-constructed prudential limits on standing. Valley Forge, 454 U.S. at 474-75, 102 S.Ct. 752. These prudential concerns include limiting standing to cases where the plaintiff asserts his own rights and interests, not those of third parties, Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), and where the complaint falls within “the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). The final prudential limitation on standing teaches that a plaintiff has no standing to assert “abstract questions of wide public significance which amount to generalized grievances, pervasively shared and most appropriately addressed in the representative branches.” Valley Forge, 454 U.S. at 475, 102 S.Ct. 752 (quotation marks omitted). We begin by addressing Doe’s Article III standing. Doe has direct personal offensive"
},
{
"docid": "22158956",
"title": "",
"text": "time in the past. In Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), we were reminded that federal courts under the Constitution have jurisdiction to consider only real cases and controversies. Id. at 559, 112 S.Ct. at 2135. At a minimum, standing requires: First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, see [Allen v. Wright] id. [468 U.S. 737], at 756 [104 S.Ct. 3315, 3327, 82 L.Ed.2d 556 (1984)]; Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16, 92 S.Ct. 1361, 1368-1369, n. 16, 31 L.Ed.2d 636 (1972); and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” Whitmore [v. Arkansas], supra [495 U.S. 149], at 155 [110 S.Ct. 1717, 1722, 109 L.Ed.2d 135 (1990)] (quoting Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983)). Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly ... traee[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan, 504 U.S. at 560-61, 112 S.Ct. at 2136 (footnote omitted). Plaintiffs bear the burden of establishing federal jurisdiction and their standing to proceed. Lujan, 504 U.S. at 561, 112 S.Ct. at 2136; FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607, 107 L.Ed.2d 603 (1990); Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 2215, 45 L.Ed.2d 343 (1975). I do not believe exposure only plaintiffs have demonstrated any “injury in fact” as of the time of filing. Furthermore, I would conclude that such plaintiffs have not presented"
},
{
"docid": "23390248",
"title": "",
"text": "requirement of Article III should never be interpreted to bar a party properly before the court from invoking the power of judicial review. To satisfy the standing requirement of Article III, Plaintiffs must demonstrate the following: (1) that the plaintiff[s] have suffered an “injury in fact”—an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there [is] a causal connection between the injury and the conduct complained of— the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it [is] likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett, — U.S. at-, 117 S.Ct. at 1163 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992)); see also Phelps v. Hamilton, 122 F.3d 1309, 1316 (10th Cir.1997). “The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). The burden is therefore on Plaintiffs “ ‘clearly to allege facts demonstrating that [they are] a proper party to invoke judicial resolution of the dispute.’ ” United States v. Hays, 515 U.S. 737, 743, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995) (quoting Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 2215, 45 L.Ed.2d 343 (1975)). “In addition to the immutable requirements of Article III, ‘the federal judicia ry has also adhered to a set of prudential principles that bear on the question of standing.’ ” Bennett, — U.S. at-, 117 S.Ct. at 1161 (quoting Valley Forge, 454 U.S. at 474-75, 102 S.Ct. at 759-60). These prudential principles include “the general prohibition on a litigant’s raising another person’s legal rights [and] the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches.” Allen, 468 U.S. at 751, 104 S.Ct. at 3324. “[U]nlike their constitutional counterparts, [these prudential"
},
{
"docid": "9931255",
"title": "",
"text": "conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Pac. Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 350 (2d Cir.2008) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106-07 (2d Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 2011, 173 L.Ed.2d 1088 (2009). It is the burden of the party invoking federal jurisdiction to establish these three elements. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. However, “at the pleading stage, standing allegations need not be crafted with precise detail.” Baur v. Veneman, 352 F.3d 625, 631 (2d Cir.2003) (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130). 1. Injury in Fact To demonstrate an injury in fact, Plaintiffs must allege an “invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks and citations omitted); see also Pac. Capital Bank, 542 F.3d at 350. To show that an injury is “concrete and particularized,” Plaintiffs must allege “that [they] personally ha[ve] suffered some actual or threatened injury as a result of the putatively illegal conduct of’ Defendants. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (internal quotation marks omitted); see also Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. 2130 (“[T]he injury must affect the plaintiff in a personal and individual way.”). For an injury to be “actual or imminent,” Plaintiffs must show “that [they] ha[ve] sustained or [are] immediately in danger of sustaining some direct injury,” City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75"
},
{
"docid": "1903722",
"title": "",
"text": "allegations as true, Plaintiffs have simply stated that implementation of the BOC program might cause a concrete and particularized injury. Id. at 537-38 (emphasis added in original) (citations omitted). Based on this passage, it can be inferred that the District Court in this case found no standing for two reasons: the threats of future harm were not imminent, and the allegations of present and past harm were not sufficiently “concrete,” because the statements in the complaint were not sufficiently direct and unqualified. II. Constitutional standing requires (1) injury-in-fact, which is an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Khodara Environmental, Inc. v. Blakey, 376 F.3d 187, 193 (3d Cir.2004) (collecting cases). “Plaintiffs bear the burden of proving standing.” Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir.2003). A “legally and judicially cognizable” injury-in-fact must be “distinct and palpable,” not “abstract or conjectural or hypothetical.” Raines v. Byrd, 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849, (1997); Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (internal quotations omitted) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), and Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). While it is diffi cult to reduce injury-in-fact to a simple formula, economic injury is one of its paradigmatic forms. In Havens Realty Corp. v. Coleman, for example, an organization devoted to fair housing practices suffered a “concrete and demonstrable injury” when a realty company’s racial “steering” practices “perceptibly impaired [its] ability to provide counseling and referral services for low-and moderate-income home-seekers,” resulting in a “drain on the organization’s resources.” 455 U.S. 363, 379, 102 S.Ct. 1114,"
},
{
"docid": "2898583",
"title": "",
"text": "a jurisdictional requirement, [it] may always be addressed for the first time on appeal”. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 555 n. 22 (5th Cir.1996). Article III standing, at its “irreducible constitutional minimum”, requires Plaintiffs to demonstrate: they have suffered an “injury in fact”; the injury is “fairly traceable” to the defendant’s actions; and the injury will “likely ... be redressed by a favorable decision”. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks omitted). In this instance, we focus on the first element for standing: injury in fact. “[A]n injury in fact [is] an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”. Id. at 560, 112 S.Ct. 2130 (internal quotation marks, footnote, and citations omitted); see City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (“The plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” (citations omitted)); Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (“party who invokes the court’s authority [must] show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant” (internal quotation marks omitted)). The injury-allegations at hand are too abstract and speculative to meet the constitutional standard for standing. See Lujan, 504 U.S. at 565 n. 2, 112 S.Ct. 2130 (“plaintiff alleges only an injury at some indefinite future time”). Representative of Plaintiffs’ position is Public Citizen’s allegation that, among Plaintiffs, their members, and their clients, [s]ome ... are financially unable to contribute to the judicial election in significant amounts, some can afford to contribute but choose not to do so because they oppose the"
},
{
"docid": "11513990",
"title": "",
"text": "a private citizen. We conclude that Hickman can show no legal injury, and therefore lacks standing to bring this action. Article III of the Constitution restricts the federal courts to adjudicating actual “cases” or “controversies.” This limitation “defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Among the cluster of doctrines that ensure our adherence to the case-or-controversy requirement, the “doctrine that requires a litigant to have ‘standing’ to invoke the power of a federal court is perhaps the most important.” Id. Article III standing is a jurisdictional prerequisite. See id. at 754, 104 S.Ct. at 3326. Thus, we are bound to address the standing issue at the threshold of the case. The party invoking federal jurisdiction has the burden to establish his standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). To do so, a litigant must satisfy three elements which constitute the “irreducible constitutional minimum” of Article III standing. Id. First, the plaintiff must have suffered injury to a legally protected interest. Id. This injury must be both “concrete and particularized,” id. (citing Warih v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-41, 92 S.Ct. 1361, 1368-69, 31 L.Ed.2d 636 (1972)), and “actual or imminent” rather than “conjectural or hypothetical.’’ Id. (citing Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1723, 109 L.Ed.2d 135 (1990) (quoting Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983)) (internal quotations omitted)). Second, “there must be a causal connection between the injury and the conduct complained of.” Id. (citing Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-26, 48 L.Ed.2d 450 (1976)). Third, the injury must be redressable by a favorable judicial decision. Id. (citing Simon, 426 U.S. at 38, 96 S.Ct. at 1924). This case turns"
},
{
"docid": "12359640",
"title": "",
"text": "Art. Ill requires the party who invokes the court’s authority to [1] “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” ... and that [2] the injury “fairly can be traced to the challenged action” and [3] “is likely to be redressed by a favorable decision.... ” Id. (citations omitted) (emphasis added); see also Natural Resources Defense Council, Inc. v. Watkins, 954 F.2d 974, 978 (4th Cir.1992). The requirement that a plaintiff suffer “actual injury redressable by the court ... tends to assure that the legal questions presented to the court will be resolved, not in the ratified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge, 454 U.S. at 472, 102 S.Ct. 752 (internal citations omitted). The Plaintiffs’ claims must be measured against these standing requirements. 1. Injury-In-Fact The first element of standing requires that a plaintiff have suffered an “injury in fact” — that is, an invasion of a legally protected interest which is (a) concrete and particularized, see Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16, 92 S.Ct. 1361, 31 L.Ed.2d 636, (1972); and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’ ” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (quoting Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)). Thus, the complainant must allege an injury to himself that is “distinct and palpable,” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343, as opposed to merely “[ajbstract,” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The litigant must clearly and specifically set forth facts sufficient to satisfy these Article III standing requirements, and a federal court is powerless to create its own jurisdiction by embellishing otherwise"
},
{
"docid": "15376307",
"title": "",
"text": "must allege an injury to himself that is distinct and palpable, as opposed to merely abstract, and the alleged harm must be actual or imminent, not conjectural or hypothetical.” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (internal quotation marks, citations and alteration omitted). We evaluate Public Citizen’s claim under the three requirements of injury-in-fact as the Court in Lujan articulated them— namely, the requirements that the asserted injury be (1) concrete, (2) particularized, and (3) actual or imminent. 1. The Supreme Court has stated that the asserted injury must be concrete—which the Court has also described as direct, real, and palpable—not abstract. See, e.g., Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (“concrete”); Whitmore, 495 U.S. at 155, 110 S.Ct. 1717 (“palpable, as opposed to merely abstract”); Allen, 468 U.S. at 751, 104 S.Ct. 3315 (“palpable”); City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (“real”); Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (“palpable”); United States v. Richardson, 418 U.S. 166, 180, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) (“a direct injury”); (internal quotation marks, citations, and alterations omitted in above quotations). In this case, the concreteness of the asserted injury is evident: Injuries from car accidents—including death, physical injuries, and property damage—are plainly concrete harms under the Supreme Court’s precedents. 2. The Supreme Court also has stated that the asserted injury must be particularized'—which the Court has also described as personal, individual, distinct, and differentiated—not generalized or undifferentiated. See, e.g., Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. 2130 (“By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.”); DaimlerChrysler Corp. v. Cuno, — U.S. -, 126 S.Ct. 1854, 1861, 164 L.Ed.2d 589 (2006) (“personal”); Whitmore, 495 U.S. at 155, 110 S.Ct. 1717 (“distinct”); Allen, 468 U.S. at 751, 104 S.Ct. 3315 (“personal”); Valley Forge, 454 U.S. at 472, 102 S.Ct. 752 (litigant must show “he personally has suffered some actual or threatened injury”); Richardson, 418 U.S. at 177,"
},
{
"docid": "23043519",
"title": "",
"text": "not founded upon the facts of a controversy between truly adverse parties. United Public Workers v. Mitchell, 330 U.S. 75, 89-90, 67 S.Ct. 556, 91 L.Ed. 754 (1947). In order to establish standing, a plaintiff must first show that she has suffered an “ ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks and citations omitted). Second, the injury must be “fairly traceable to the challenged action of the defendant.” Id. (internal quotation marks omitted). Third, “it must be ‘likely,’ as opposed to merely ‘speculative,’ ” that the injury is remediable by appropriate court action. Id. at 561, 112 S.Ct. 2130. In an action challenging the constitutionality of racial and gender classifications, the defendant bears the ultimate burden of proving that the classifications satisfy strict and intermediate scrutiny respectively. See Richmond v. J.A. Croson Co., 488 U.S. 469, 505, 509-11, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (discussing strict scrutiny); United States v. Virginia, 518 U.S. 515, 531, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (discussing intermediate scrutiny). However, before the burden shifts to the defendant to make such a showing, the plaintiff must first satisfy her burden of demonstrating that she has standing to make the constitutional challenge. Adarand, 515 U.S. at 210-11, 115 S.Ct. 2097. The burden of establishing Article III standing remains at all times with the party invoking federal jurisdiction. Lujan, 504 U.S. at 561, 112 S.Ct. 2130; see also Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (“It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.”). Our principal task is to determine whether Scott faces “a realistic danger of sustaining a direct injury as a result of the [policyl’s operation or enforcement,” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60"
},
{
"docid": "3867820",
"title": "",
"text": "political question doctrine. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). These doctrines are composed both of prudential elements which “Congress is free to override,” see Fair Employment Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1278 (D.C.Cir.1994), and “core component^]” which are “essential and unchanging part[s] of the case-or-controversy requirement of Article III,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Two of the justiciability doctrines — standing and ripeness — are implicated in the present case. Article III standing requires that a plaintiff have suffered an (1) “injury in fact— an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical” — (2) which is “fairly traceable” to the challenged act, and (3) “likely” to be “redressed by a favorable decision.” Id. at 560-61, 112 S.Ct. at 2136 (internal quotations and citations omitted). These requirements apply whether an organization asserts standing to sue; either on its own behalf, or on behalf of its members. Havens Realty Corp. v. Coleman, 455 U.S. 363, 378, 102 S.Ct. 1114, 1124, 71 L.Ed.2d 214 (1982). With respect to the “injury in fact” requirement, an organization suing on its own behalf must demonstrate that it has suffered “concrete and demonstrable injury to [its] activities.” Id. at 379, 102 S.Ct. at 1124. A mere “setback to the organization’s abstract social interests” is inadequate to establish standing. Id. Further, the injury alleged cannot be “ ‘conjectural’ or ‘hypothetical,’ ” City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983), “remote,” Warth v. Seldin, 422 U.S. 490, 507, 95 S.Ct. 2197, 2209-10, 45 L.Ed.2d 343 (1975), “speculative,” Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 42-46, 96 S.Ct. 1917, 1926-28, 48 L.Ed.2d 450 (1976), or “abstract,” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). Rather, it must be “certainly impending.” Whitmore v. Arkansas, 495 U.S. 149, 158, 110"
},
{
"docid": "4327112",
"title": "",
"text": "In this Court, the defendants-appellants renew their argument contesting the standing of Pelican Chapter and its members to prosecute this action. The irreducible minimum of standing contains three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is [ jconcrete and particularized,” id., at 560, 112 S.Ct. at 2136; Allen v. Wright, 468 U.S. 737, 756, 104 S.Ct. 3315, 3327, 82 L.Ed.2d 556 (1984); Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16, 92 S.Ct. 1361, 1368-1369, n. 16, 31 L.Ed.2d 636 (1972); and “ ‘actual or imminent’, not ‘conjectural’ or ‘hypothetical’ ”, Lujan, 504 U.S. at 560, 112 S.Ct. at 2136; Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1723, 109 L.Ed.2d 135 (1990); Los Angeles v. Lyons, 461 U.S. 95,102,103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983). “Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Lujan, 504 U.S. at 560, 112 S.Ct. at 2136; Simon v. Eastern Ky. Welfare Rights Org’n., 426 U.S. 26, 41-12, 96 S.Ct. 1917, 1925-1926, 48 L.Ed.2d 450 (1976). “Third, it must be likely, as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Lujan, 504 U.S. at 561, 112 S.Ct. at 2136; Simon, 426 U.S. at 38, 96 S.Ct. at 1924. “The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561, 112 S.Ct. at 2136; FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607-608, 107 L.Ed.2d 603 (1990); Warth, 422 U.S. at 508, 95 S.Ct. at 2210. “Since they are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must"
}
] |
641731 | extensive discussion that when two or more plaintiffs, having separate and distinct demands, unite in a single suit for convenience of litigation, their claims cannot be aggregated to make up the jurisdictional amount. Walter v. Northeastern R. Co., 1893, 147 U.S. 370, 373, 13 S.Ct. 348, 37 L.Ed. 206; Troy Bank of Troy, Ind., v. G. A. Whitehead & Co., 1911, 222 U.S. 39, 40, 41, 32 S.Ct. 9, 56 L.Ed. 81; Pinel v. Pinel, 1916, 240 U.S. 594, 596, 36 S.Ct. 416, 60 L.Ed. 817; Clark v. Paul Gray, Inc., 1939, 306 U.S. 583, 589, 59 S.Ct. 744, 83 L.Ed. 1001; Thomson v. Gaskill, 1942, 315 U.S. 442, 447, 62 S.Ct. 673, 86 L.Ed. 951; REDACTED d 910. The judgment is Affirmed. | [
{
"docid": "7844855",
"title": "",
"text": "two or more complainants, claiming not under a single or joint right or title but by separate and distinct demands, unite in a single suit in which jurisdiction is invoked upon the basis of diversity of citizenship, it is essential to jurisdiction that the demand of each be of the requisite jurisdictional amount. On the other hand, when several plaintiffs unite to enforce a single right or title in which they have a common and undivided interest, though separable among themselves, it suffices if their interests collectively equal the jurisdictional amount. Troy Bank of Troy, Ind. v. Whitehead & Co., 222 U.S. 39, 32 S.Ct. 9, 56 L.Ed. 81; Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817. But claims cannot be aggregated for jurisdictional purposes merely because they derive from a single instrument or because plaintiffs have a community of interest. Thomson v. Gaskill, 315 U.S. 442, 62 S.Ct. 673, 86 L.Ed. 951. And these general principles have application in an action seeking a declaratory judgment determining legal rights and obligations arising from contracts of insurance. Aetna Insurance Co. v. Chicago, Rock Island & Pacific Railroad Co., 10 Cir., 229 F.2d 584. The several policies involved in this action covered the same property but the liability of each company under its policy was separate and distinct from that of the other companies. There was no joint or undivided liability and there was no common fund or lien involved. The companies had a community of interest in the insurance but a separate and distinct lia bility arising out of their policies, respectively, and that was the effect of the claims asserted on behalf of the insureds. Therefore, the separate claims of the insureds could not be aggregated for the purpose of determining whether the amount requisite to jurisdiction was in controversy. And since each of the claims was less than $3,000 in amount, there was lack of jurisdiction. Aetna Insurance Co. v. Chicago, Rock Island & Pacific Railroad Co., supra. The judgment is affirmed."
}
] | [
{
"docid": "23207965",
"title": "",
"text": "purposes of determining the amount in controversy.” 14B Wright, Miller & Cooper, Federal Practice and Procedure § 3704, at 134 (1994). The rule applies even if the plaintiffs have a community of interest, but fall short of establishing a single title or right in which they have a common and undivided interest. See Thomson v. Gaskill, 315 U.S. 442, 446-47, 62 S.Ct. 673, 86 L.Ed. 951 (1942); Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416, 60 L.Ed. 817 (1916). In such circumstances, the claims of those plaintiffs who fail to meet the amount in controversy must be remanded. See Clark v. Paul Gray, Inc., 306 U.S. 583, 590, 59 S.Ct. 744, 83 L.Ed. 1001 (1939); see also Pinel, 240 U.S. at 596, 36 S.Ct. 416 (joinder case). Similarly, in a class action, each member of a class who does not meet the jurisdictional amount must be dismissed from the case. See Zahn v. International Paper Co., 414 U.S. 291, 301, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); Snyder v. Harris, 394 U.S. 332, 335-37, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). Although the present dispute involves parties joined for convenience, the line of eases from Pinel to Zahn applies equally to joinder cases and class actions. See, e.g., Snyder, 394 U.S. at 337, 89 S.Ct. 1053 (treating class actions the same as cases with joined plaintiffs for purposes of aggregation rules); 1 Moore et al., supra, ¶ 0.97[5], at 928-29 (1994) (“Snyder and Zahn simply mean that the aggregation rules formulated for cases involving multiple plaintiffs or defendants apply to class actions.”). Aggregation based on the total of the claims asserted by Meritcare and Quinlan in this case cannot be used to satisfy Quin-lan’s jurisdictional amount. Although their claims stem from the same cause&emdash;the roof “collapse” and shared insurance coverage&emdash; they are separate and distinct. Quinlan alleges damages that differ from those of Mer-itcare and are not of an undivided interest. B. As an alternative, Quinlan relies on supplemental jurisdiction as conferred by the Judicial Improvements Act of 1990, Pub.L. 101-650, Title III, § 310(a), 104 Stat. 5113"
},
{
"docid": "22266554",
"title": "",
"text": "supply the jurisdictional amount. Hence as to these plaintiffs, this amount can be found only by an aggregation of their claims. Appellants’ objections to the timeliness or form of the motion to dismiss are unavailing, as jurisdictional issues may be raised by the court at any time on its own' motion. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001; Federal Rule 12(h), 28 U.S.C.A. following section 723c. It is well settled that when two or more plaintiffs, each having a separate and distinct demand, join in a single suit, the demand of each must be of the requisite jurisdictional amount. Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817. Aggregation to make up the jurisdictional amount is permitted only when the claims are of a joint nature, as when it is sought to enforce a single title in which the plaintiffs have a common interest. Shields v. Thomas, 17 How. 3, 58 U.S. 3, 15 L.Ed. 93; Troy Bank v. G. A. Whitehead & Co., 222 U.S. 39, 32 S.Ct. 9, 56 L.Ed. 81. No such joint right is involved here. The claim here stated is for misrepresentation, whereby the plaintiffs were induced to make a sale of their notes for less than their true value. Clear ly, each plaintiff, to prevail, must show that he himself was misled by the defendants’ misrepresentations, and that as a result he sustained a loss. Ayer v. Kemper, 2 Cir., 48 F.2d 11, certiorari denied Union Trust Co. v. Ayer, 284 U.S. 639, 52 S.Ct. 20, 76 L.Ed. 543. That case was brought on a theory exactly the same as the one before us now; it was further declared that any trust sought to be imposed for the benefit of the plaintiffs was separable, each trust being on the particular securities of which each plaintiff had been deprived (cf. Freeman v. Dawson, 110 U.S. 264, 4 S.Ct. 94, 28 L.Ed. 141), and that the theory of a class suit could not be relied on to make jurisdiction. A class could be found only in"
},
{
"docid": "21141828",
"title": "",
"text": "819, cert. denied 323 U.S. 779, 65 S.Ct. 190, 89 L.Ed. 622; Black & Yates v. Mahogany Ass’n, 3 Cir., 1941, 129 F.2d 227, 236-237 (on rehearing 1942); Hackner v. Guaranty Trust Co. of New York, 2 Cir., 1941, 117 F.2d 95, cert. denied 313 U.S. 559, 61 S.Ct. 835, 85 L.Ed. 1520; Knowles v. War Damage Corporation, 1948, 83 U.S.App.D.C. 388, 171 F.2d 15, cert. denied 336 U.S. 914, 69 S.Ct. 604, 93 L.Ed. 1077; Shipley v. Pittsburgh & L. E. R. Co., D.C.W.D.Pa., 1947, 70 F.Supp. 870, 873; see 3 Moore’s Federal Practice, pp. 3477-3481, also cases in note 3, p. 3478. Similar rulings had been made under former Equity Rule 38. See Nolen v. Riechman, D.C.W.D.Tenn., W.D., 1915, 225 F. 812, 816, quoted in part with approval in Eberhard v. Northwestern Mut. Life Ins. Co., 6 Cir., 1917, 241 F. 353, 356. The general principle enunciated before the adoption of the Federal Rules of Civil Procedure was stated in Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416, 417, 60 L.Ed. 817 (1916), as follows: “The settled rule is that when two or more plaintiffs having separate and distinct demands unite in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount; but when several plaintiffs unite to enforce a single title or right in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount. Clay v. Field, 138 U.S. 464, 479 [34 L.Ed. 1044, 1049, 11 Sup.Ct. Rep. 419] ; Troy Bank [Troy, Ind.] v. [G. A.] Whitehead [& Co.], 222 U.S. 39 [56 L.Ed. 81, 32 Sup.Ct.Rep. 9]. * * *» A judgment against one or more of the 50 defendants served in this action would not be binding on the remainder since “the decree in spurious type of class action is not binding as in the true class action, upon the entire class; it binds only those actually before the court.” 3 Moore’s Federal Practice, p. 3465. The district court has some discretion with respect to whether"
},
{
"docid": "15533239",
"title": "",
"text": "(a) and (c). Lack of Jurisdiction Over the Subject Matter The initial issue to be resolved is whether this Court has jurisdiction over Hylte Bruks’ claims against B & W. Where two or more plaintiffs are suing a single defendant, the general rule is that the claims of each cannot be aggregated; the claims of each plaintiff must individually satisfy the jurisdictional amount. See Wright, Federal Courts § 29 (1963). The single exception to this rule is a suit \"in which several plaintiffs, having a common undivided interest, unite to enforce a single title or right,\" when \"it is enough if their interests collectively equal the jurisdictional amount.\" Troy Bank of Troy, Indiana v. G. A. Whitehead & Co., 222 U.S. 39, 40-41, 32 S.Ct. 9, 56 L.Ed. 81 (1911); Shields v. Thomas, 17 How. 3, 5, 15 L.Ed. 93 (1854); Gibbs v. Buck, 307 U.S. 66, 74-75, 59 S.Ct. 725, 83 L.Ed. 1111 (1939). Where, however, the matters in dispute are considered \"separate and distinct\" aggregation is not permitted. Thus, as stated in Thomson v. Gaskill, 315 U.S. 442, 447, 62 S.Ct. 673, 675, 86 L.Ed. 951 (1942): “Aggregation of plaintiffs’ claims cannot be made merely because the claims are derived from a single instrument, Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817, or because the plaintiffs have a community of interest, Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001.” Here, plaintiffs Hylte Bruks and Nymolla are not suing to enforce an undivided or joint interest. See DeLorenzo v. Federal Deposit Insurance Corp., 259 F.Supp. 193 (S.D.N.Y.1966), opinion adhered to on reargument, 268 F.Supp. 378, 381 (1967). Although the claims to which Hylte Bruks is a party are derived from the same instrument allegedly breached and from the same alleged breach of implied warranty, and although plaintiffs share a community of interest, there is no contention by any party herein that the injuries claimed are not separate as to each plaintiff. See Aetna Insurance Co. v. Chicago, Rock Island & Pac. R. Co., 229 F.2d 584, 586 (10th Cir."
},
{
"docid": "18211844",
"title": "",
"text": "the matter in controversy exceeds the sum or value of $3,000. Healy v. Ratta, 292 U.S. 263, 54 S.Ct. 700, 78 L.Ed. 1248. In order to support the court’s jurisdiction in diversity of citizenship actions, facts must appear in the record showing to a legal certainty that the requisite jurisdictional amount is involved. “The rule is thoroughly settled that where two or more plaintiffs have separate and distinct demands in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount, but when several plaintiffs unite to enforce a single title or right in which they have a common, undivided interest, it is enough if their interests collectively equal the jurisdictional amount. Gibson v. Shufeldt, 122 U.S. 27, 7 S.Ct. 1066, 30 L.Ed. 1083; Clay v. Field, 138 U.S. 464, 479, 11 S.Ct. 419, 34 L.Ed. 1044; Troy Bank [of Troy, Ind.] v. Whitehead, 222 U.S. 39, 32 S.Ct. 9, 56 L.Ed. 81.” (p. 821) Compare Fechheimer Bros. Co. v. Barnwasser, 146 F.2d 974, 976 (6th Cir. 1945). The Second Circuit has clearly enunciated the rule applicable to this case: Hackner v. Guaranty Trust Co. of New York, 117 F.2d 95, 97 (2nd Cir. 1941) and Arnold v. Troccoli, 344 F.2d 842, 843, footnote 1 (2nd Cir. 1965). In Hackner, supra, Clark, C. J., wrote: “It is well settled that when two or more plaintiffs, each having a separate and distinct demand, join in a single suit, the demand of each must be of the requisite jurisdictional amount. Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817. Aggregation to make up the jurisdictional amount is permitted only when the claims are of a joint nature, as when it is sought to enforce a single title in which the plaintiffs have a common interest. Shields v. Thomas, 17 How. 3, 58 U.S. 3, 15 L.Ed. 93; Troy Bank [of Troy, Ind.] v. G. A. Whitehead & Co., 222 U.S. 39, 32 S.Ct. 9, 56 L.Ed. 81. * * *” (117 F.2d p. 97) See also Thomson v. Gaskill, 315 U.S. 442, 447,"
},
{
"docid": "7706257",
"title": "",
"text": "alternative theories to persuade itself that subject matter jurisdiction exists, see Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 637 (1st Cir.1989), but since the district court considered the case and we raised this issue, we address it here. The anti-aggregation rule had its origin in a case involving the appellate jurisdiction of the Supreme Court rather than the original subject matter jurisdiction of the district courts. See Oliver v. Alexander, 31 U.S. (6 Pet.) 143, 8 L.Ed. 349 (1832). Much later, in 1893, “the original Alexander construction of [the Court’s] appellate jurisdiction was applied to the jurisdictional-amount requirement for federal trial courts.” Zahn v. International Paper Co., 414 U.S. 291, 294 n. 3, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), citing Walter v. Northeastern R.R. Co., 147 U.S. 370, 373, 13 S.Ct. 348, 37 L.Ed. 206 (1893). Apparently, little thought was given to whether “different aggregation policies might be of greater importance for original federal court jurisdiction than for appellate jurisdiction.” 14AA Wright & Miller § 3704, at 596. By 1916, however, the Court was able to describe the anti-aggregation principle as a “settled rule” of diversity jurisdiction, Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416, 60 L.Ed. 817 (1916), and it certainly is so now. The rule is: When two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount; but when several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount. Zahn, 414 U.S. at 294, 94 S.Ct. 505 (emphases added), quoting Troy Bank v. G.A. Whitehead & Co., 222 U.S. 39, 40-41, 32 S.Ct. 9, 56 L.Ed. 81 (1911). The anti-aggregation rule thus distinguishes between “separate and distinct interests,” which cannot be aggregated to reach the jurisdictional minimum, and “common and undivided interests,” which can be aggregated. The Supreme Court has opined that the “lower courts have developed largely workable standards for determining"
},
{
"docid": "15934704",
"title": "",
"text": "the workers at cost, and providing a hot luncheon item supplementing present lunch arrangements.” Appendix “A,” defendants’ memorandum in support of motion to dismiss. . Paragraphs 18 and 31, Amended Complaint. . The availability of j)unitive damages is dependent upon state law. Wright, Federal Courts, § 33, at 112 (1970). It is extremely questionable whether, in a case such as this, punitive damages would be available. See Triangle Sheet Metal Workers v. Silver, 154 Conn. 116, 127-128, 222 A.2d 220 (1966); Givens v. W. T. Grant Co., 457 F.2d 612, 614 (2d Cir. 1972). Even assuming the availability of such damages, however, the monetary claims of each individual plaintiff would still, to a legal certainty, fall well below the jurisdictional amount requirement. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Deutsch v. Hewes St. Realty Corp., 359 F.2d 96, 99 (2d Cir. 1966). . “Aggregation of the plaintiffs’ claims cannot be made merely because the claims are derived from a single instrument, Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817, or because the xjlaintiffs have a community of interest, Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed, 1001.” Thomson v. Gaskill, 315 U.S. 442, 447, 62 S.Ct. 673, 86 L.Ed. 951 (1942). . 28 U.S.C. § 1337 provides that “The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce. . 20 C.F.R. § 602.9. . 77 Cong.Rec. 4766-4783 (1933). . Plaintiffs’ Exhibit 3, p. 3. . 42 U.S.C. § 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 . . . .” . 28"
},
{
"docid": "6175362",
"title": "",
"text": "a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount.” Id. at 40—41, 32 S.Ct. 9 (citing Shields v. Thomas, 58 U.S. (17 How.) 3, 4-5 (1854)). Based on the exception, the Court held in Troy Bank that the two plaintiffs could aggregate their claims based on a vendor’s lien that they owned jointly. See Troy Bank, 222 U.S. at 41, 32 S.Ct. 9; see also Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939); Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817 (1916). In Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), the Supreme Court rejected an argument that recent amendments to Rule 23 had changed the rule to allow aggregation in class actions. It reiterated that aggregation to meet the amount-in-controversy requirement was permissible only “(1) in cases in which a single plaintiff seeks to aggregate two or more of his own claims against a single defendant and (2) in cases in which two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest.” Id. at 335, 89 S.Ct. 1053. It noted that the limitation on aggregation in class actions stemmed not from Rule 23 but from the Court’s interpretation of the phrase “mat ter in controversy” in the basic diversity statute, 28 U.S.C. § 1332. See id. at 336, 89 S.Ct. 1053; see also Zahn, 414 U.S. at 299-301, 94 S.Ct. 505. Our circuit has considered the anti-aggregation rule and the common interest exception in a number of cases. See, e.g., Eagle v. American Tel. & Tel. Co., 769 F.2d 541, 547 (9th Cir.1984) (allowing aggregation of shareholders’ claims for breach of fiduciary duty); Snow v. Ford Motor Co., 561 F.2d 787, 790 (9th Cir.1977) (ban on aggregation applies to injunctive as well as compensatory relief); United States v. Southern Pac. Transp. Co., 543 F.2d 676, 683 (9th Cir.1976) (denying aggregation of claims against railroad because rights to exclude trespassers arose “from the status of each"
},
{
"docid": "4459664",
"title": "",
"text": "have joined in Beatriz’s diversity suit unless they each stood to recover more than the minimum amount required for jurisdiction. As early as 1911, the Supreme Court declared that “[w]hen two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount.” Troy Bank v. G.A. Whitehead & Co., 222 U.S. 39, 40, 32 S.Ct. 9, 56 L.Ed. 81 (1911). That rule is now commonly associated with Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939), which reaffirmed Troy Bank after the adoption of the Federal Rules of Civil Procedure. See 306 U.S. at 589, 59 S.Ct. 744. Even after United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), in which the Supreme Court approved pendent-claim jurisdiction in federal-question cases, see id. at 725, Clark remained good law: “Multiple plaintiffs with separate and distinct claims must each satisfy the jurisdictional-amount requirement for suit in the federal courts.” Zahn v. Int’l Paper Co., 414 U.S. 291, 294, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); see also Aldinger v. Howard, 427 U.S. 1, 15-16, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976) (distinguishing pendent-party jurisdiction from the type of pendent-claim jurisdiction permitted in Gibbs). If the Clark rule applies in this case, we should affirm the dismissal as to Beatriz’s family members but vacate as to Beatriz, thereby leaving Beatriz free to choose between proceeding alone in federal court or voluntarily dismissing her complaint and re-filing together with her family in the Puerto Rico courts. See Clark, 306 U.S. at 590, 59 S.Ct. 744. Whether Clark continues to apply today depends on how one reads 28 U.S.C. § 1367, the supplemental jurisdiction statute, which was enacted by Congress in 1990. See Judicial Improvements Act of 1990, Pub.L. No. 101-650, 104 Stat. 5089, § 310. In relevant part, § 1367 provides: (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action"
},
{
"docid": "13034901",
"title": "",
"text": "of profit; proof of only decrease in sales volume was not enough. In Sternheider the district court made findings of fact only as to gross premiums and none as to net profit. But there are four -plaintiffs here, rather than one. Each has a separate corporate identity and each is engaged in a different insurance activity (except that State Fire and State General both primarily write fire and allied lines). The earned premiums, losses, expenses, and profits figures referred to above are not broken down for the three casualty company plaintiffs but reflect those items in the aggregate for all. If they were to be broken down, it is obvious that the profits cannot exceed $10,000 for more than one plaintiff. Thus if net profit were the measure, federal jurisdiction depends on these plaintiffs’ ability to aggregate their claims. Where there are multiple plaintiffs, as here, the standard is that pronounced in Troy Bank v. G. A. Whitehead & Co., 222 U.S. 39, 40-41, 32 S.Ct. 9, 56 L.Ed. 81 (1911): “When two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount; but when several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount.” Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416, 60 L.Ed. 817 (1916); Division 525, Order of Ry. Conductors v. Gorman, 133 F.2d 276 (8 Cir. 1943). Chief Judge Tuttle has recently stated the standard thusly: “In other words, the obligation to the plaintiffs must be a joint one”. Eagle Star Ins. Co. v. Maltes, 313 F.2d 778, 781 (5 Cir. 1963). We feel that the interests of these plaintiffs asserted in this lawsuit meet the standard for collectivization of claims for jurisdictional purposes. Admittedly, the four plaintiffs are separate corporations and two are engaged in insurance lines separate and distinct from the other two and from each other. Admittedly, also, the contracts"
},
{
"docid": "23207964",
"title": "",
"text": "subsequent change that can be ignored.” 15 James W. Moore et al., Moore’s Federal Practice ¶ 102.104[3], at 102-167 (3d ed.1998). Thus, if it develops that the requisite amount in controversy was never present, even if that fact is not established until the case is on appeal, the judgment of the District Court cannot stand. See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-19, 71 S.Ct. 534, 95 L.Ed. 702 (1951); Knop v. McMahan, 872 F.2d 1182, 1139 (3d Cir.1989). A. In circumstances where two or more plaintiffs in state court have joined their claims, a question arises whether those claims may be aggregated to meet the required jurisdictional amount on removal. There is no dispute that Meritcare’s claims exceed $50,000, and if combined with Quinlan’s, would total more than $50,000, the minimum required by the diversity statute at the time. As succinctly stated in a leading treatise, the rule is “long-standing and seemingly well-settled ... that the claims of several plaintiffs, if they are separate and distinct, cannot be aggregated for purposes of determining the amount in controversy.” 14B Wright, Miller & Cooper, Federal Practice and Procedure § 3704, at 134 (1994). The rule applies even if the plaintiffs have a community of interest, but fall short of establishing a single title or right in which they have a common and undivided interest. See Thomson v. Gaskill, 315 U.S. 442, 446-47, 62 S.Ct. 673, 86 L.Ed. 951 (1942); Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416, 60 L.Ed. 817 (1916). In such circumstances, the claims of those plaintiffs who fail to meet the amount in controversy must be remanded. See Clark v. Paul Gray, Inc., 306 U.S. 583, 590, 59 S.Ct. 744, 83 L.Ed. 1001 (1939); see also Pinel, 240 U.S. at 596, 36 S.Ct. 416 (joinder case). Similarly, in a class action, each member of a class who does not meet the jurisdictional amount must be dismissed from the case. See Zahn v. International Paper Co., 414 U.S. 291, 301, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); Snyder v. Harris, 394 U.S. 332,"
},
{
"docid": "7706258",
"title": "",
"text": "was able to describe the anti-aggregation principle as a “settled rule” of diversity jurisdiction, Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416, 60 L.Ed. 817 (1916), and it certainly is so now. The rule is: When two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount; but when several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount. Zahn, 414 U.S. at 294, 94 S.Ct. 505 (emphases added), quoting Troy Bank v. G.A. Whitehead & Co., 222 U.S. 39, 40-41, 32 S.Ct. 9, 56 L.Ed. 81 (1911). The anti-aggregation rule thus distinguishes between “separate and distinct interests,” which cannot be aggregated to reach the jurisdictional minimum, and “common and undivided interests,” which can be aggregated. The Supreme Court has opined that the “lower courts have developed largely workable standards for determining when claims are joint and common, and therefore entitled to be aggregated, and when they are separate and distinct and therefore not aggregable.” Snyder, 394 U.S. at 341, 89 S.Ct. 1053. Other courts and commentators have taken a less sanguine view. See, e.g., Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1262 (11th Cir.2000) (noting “pervasive criticism of the ‘separate and distinct’ versus ‘common and undivided’ distinction as arcane and confusing”); Eagle v. American Tel. and Tel. Co., 769 F.2d 541, 546 (9th Cir.1985) (“The dividing line is not clear.”); Local Div. No. 714, Amalgamated Transit Union v. Greater Portland Transit Dist., 589 F.2d 1, 10 (1st Cir.1978) (“The distinction between ‘a common and undivided interest’ and ‘separate and distinct’ claims is not entirely clear.”), overruled on other grounds by Jackson Transit Auth. v. Local Div. 1285, Amalgamated Transit Union, 457 U.S. 15, 102 S.Ct. 2202, 72 L.Ed.2d 639 (1982); Aetna Cas. & Sur. Co. v. Graves, 381 F.Supp. 1159, 1162-63 (W.D.La.1974) (“We also realize that the rules on aggregation of claims to satisfy the"
},
{
"docid": "17072271",
"title": "",
"text": "28 U.S.C. § 1332(a) (1994 & Supp. II 1996). Thus, in diversity cases a federal court cannot exercise supplemental jurisdiction over a claim unless it first has original jurisdiction over a civil action “between citizens of different states” in which the “matter in controversy” exceeds $75,000. Section 1332 does not itself state whether each plaintiff in a diversity case must be a citizen of a different state from each defendant, or if only one plaintiff need be of diverse citizenship. Nor does § 1332 state whether each plaintiff in a diversity suit must have a claim in which at least $75,000 is “in controversy,” or if all of the plaintiffs’ claims may be aggregated to reach the jurisdictional amount, or if only one plaintiff need satisfy the “matter in controversy” requirement. Since the earliest years of the Republic, however, the Supreme Court has interpreted the diversity jurisdiction statute to require complete diversity of citizenship of each plaintiff from each defendant. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). Moreover, it has long been the rule that each plaintiff in a diversity suit must independently satisfy the diversity statute’s jurisdictional amount in controversy. See Clark v. Paul Gray, Inc., 306 U.S. 583, 589, 59 S.Ct. 744, 83 L.Ed. 1001 (1939) (“when several plaintiffs assert separate and distinct demands in a single suit, the amount involved in each separate controversy must be of the requisite amount to be within the jurisdiction of the district court”); Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416, 60 L.Ed. 817 (1916) (same); Troy Bank v. Whitehead & Co., 222 U.S. 39, 40, 32 S.Ct. 9, 56 L.Ed. 81 (1911) (same). The Court has reasoned that § 1332’s two requirements— “diversity” and “matter in controversy”— are jurisdictional, and the statute’s grant of “original jurisdiction” to federal courts depends upon each and every plaintiff satisfying each of those requirements. The Supreme Court has also held that § 1332’s dual requirements generally apply in diversity-based class actions. Thus, in Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 366-67, 41 S.Ct. 338,"
},
{
"docid": "18211845",
"title": "",
"text": "Second Circuit has clearly enunciated the rule applicable to this case: Hackner v. Guaranty Trust Co. of New York, 117 F.2d 95, 97 (2nd Cir. 1941) and Arnold v. Troccoli, 344 F.2d 842, 843, footnote 1 (2nd Cir. 1965). In Hackner, supra, Clark, C. J., wrote: “It is well settled that when two or more plaintiffs, each having a separate and distinct demand, join in a single suit, the demand of each must be of the requisite jurisdictional amount. Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817. Aggregation to make up the jurisdictional amount is permitted only when the claims are of a joint nature, as when it is sought to enforce a single title in which the plaintiffs have a common interest. Shields v. Thomas, 17 How. 3, 58 U.S. 3, 15 L.Ed. 93; Troy Bank [of Troy, Ind.] v. G. A. Whitehead & Co., 222 U.S. 39, 32 S.Ct. 9, 56 L.Ed. 81. * * *” (117 F.2d p. 97) See also Thomson v. Gaskill, 315 U.S. 442, 447, 62 S.Ct. 673, 86 L.Ed. 951. The plaintiffs rely upon Johns-Manville Sales Corp. v. Chicago Title & Trust Co., 261 F.Supp. 905, 906 (N.D.Ill.1966). I call the attention of plaintiffs’ counsel to the fact that this opinion states that the weight of authority appears to hold “that although joinder of party-plaintiffs might well be proper under the Rules of Civil Procedure, such a joinder does not per se satisfy statutory jurisdictional requirements,” citing certain cases (p. 907). The court also wrote: “Further, it is well settled that multiple plaintiffs cannot aggregate damage claims to satisfy the jurisdictional amount. Thomson v. Gaskill, 315 U.S. 442, 62 S.Ct. 673, 86 L.Ed. 951.” (p. 907) The court also conceded : “I realize both the gloss of novelty and lack of precedent in my ruling.” (p. 908) Although the Illinois District Court denied the defendant’s motion to dismiss because of lack of jurisdiction, it is impossible to reconcile this decision with the determinations of the Second Circuit in Arnold v. Troccoli, supra, and Hackner v. Guaranty Trust Co. of"
},
{
"docid": "7730597",
"title": "",
"text": "in the former it is not. Snyder v. Harris, supra, 394 U.S. at 335, 89 S.Ct. at 1057; Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939); Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817 (1916); Troy Bank v. G. A. Whitehead & Co., 222 U.S. 39, 32 S.Ct. 9, 56 L.Ed. 81 (1911). Snyder, as is now well recognized, held that the changes in Rule 23 enacted in 1966 did not expand the jurisdiction of the federal courts over class actions. The jurisdictional requirements that antedated the 1966 changes thus survived, and among these was the requirement that in diversity cases the amount in controversy exceed $10,000. The claims of class members could only be aggregated to meet this requirement if the suit was a “true” class action, i. e., one in which the rights of the class members were “common and undivided.” Aggregation was not permitted in “hybrid” or “spurious” class actions. Thus although these categories stand today largely as historical curiosities, they retain a certain vitality in the determination of the permissibility of aggregation. Is this, then, a “true” class action? Confusion characterized the construction of this phrase prior to the 1966 revision of Rule 23, and the ensuing years have brought little clarification. One commentator has suggested that two tests were evolved by courts to determine the suitability of aggregation. One was the “interest in distribution test”, which sought to ascertain whether the party opposing the class had any interest in the manner in which funds were to be distributed to members of the class. If the party had no interest, the claim was deemed common and undivided. The other was the “essential party” test, which held class claims aggregable when none of the class members could bring suit separately without directly affecting the rights of the other members of the class. Under the latter test, the instant suit would surely qualify as a “true” class action, for once it is determined whether or not the defendant has been in compliance with its Amended Articles of"
},
{
"docid": "15533240",
"title": "",
"text": "v. Gaskill, 315 U.S. 442, 447, 62 S.Ct. 673, 675, 86 L.Ed. 951 (1942): “Aggregation of plaintiffs’ claims cannot be made merely because the claims are derived from a single instrument, Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817, or because the plaintiffs have a community of interest, Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001.” Here, plaintiffs Hylte Bruks and Nymolla are not suing to enforce an undivided or joint interest. See DeLorenzo v. Federal Deposit Insurance Corp., 259 F.Supp. 193 (S.D.N.Y.1966), opinion adhered to on reargument, 268 F.Supp. 378, 381 (1967). Although the claims to which Hylte Bruks is a party are derived from the same instrument allegedly breached and from the same alleged breach of implied warranty, and although plaintiffs share a community of interest, there is no contention by any party herein that the injuries claimed are not separate as to each plaintiff. See Aetna Insurance Co. v. Chicago, Rock Island & Pac. R. Co., 229 F.2d 584, 586 (10th Cir. 1956); Eagle Star Insurance Co. v. Maltes, 313 F.2d 778 (5th Cir. 1963). In fact, Hylte Bruks concedes, and defendant does not contest, that it sustained no injury and thus suffered no damages whatsoever from B & W's alleged breaches. The only injuries alleged were losses suffered by the pulp mill in Ivetofta, which mill was owned by Nymolla throughout its period of operations. Despite the foregoing, Hylte Bruks in the two claims for damages to which it is a party joins with Nymolla in seeking total damages of $836,000 without further specification as to what amount is claimed by each. It is well settled that the mere allegation of damages over the jurisdictional minimum will not confer jurisdiction upon a federal court when plaintiffs are individually required to establish jurisdiction. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939). When a claim falls below the minimum required and aggregation is not permitted, dismissal for lack of jurisdiction is mandatory. Thomson v. Gaskill, supra. The rule, at least in"
},
{
"docid": "7730596",
"title": "",
"text": "employment of a purchase fund to repurchase preferred shares. See also Van Gemert v. Boeing Company, supra. II. A related question is whether the claims of those comprising the second Brandt subclass are aggregable, or whether each member of the subclass must meet the jurisdictional minimum. Counsel for both Brandt and Laufer appear to assume that any (b)(2) class action ipso facto permits of aggregation. This view was at one time tentatively asserted by Judge Frankel and then promptly rejected by Professor Moore. Nevertheless it is now moderately clear that our Court of Appeals does not regard aggregation of claims as the inevitable concomitant of a (b) (2) designation. .See Givens v. W. T. Grant Company, 457 F.2d 612, fn. 4 (2nd Cir. 1972). I am thus required to make a separate determination of whether the members of the second subclass are asserting “separate and distinct claims”, or whether they have “unite[d] to enforce a single title or right in which they have a common and undivided interest.” In the latter situation aggregation is permitted, in the former it is not. Snyder v. Harris, supra, 394 U.S. at 335, 89 S.Ct. at 1057; Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939); Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817 (1916); Troy Bank v. G. A. Whitehead & Co., 222 U.S. 39, 32 S.Ct. 9, 56 L.Ed. 81 (1911). Snyder, as is now well recognized, held that the changes in Rule 23 enacted in 1966 did not expand the jurisdiction of the federal courts over class actions. The jurisdictional requirements that antedated the 1966 changes thus survived, and among these was the requirement that in diversity cases the amount in controversy exceed $10,000. The claims of class members could only be aggregated to meet this requirement if the suit was a “true” class action, i. e., one in which the rights of the class members were “common and undivided.” Aggregation was not permitted in “hybrid” or “spurious” class actions. Thus although these categories stand today largely as historical curiosities, they"
},
{
"docid": "17072272",
"title": "",
"text": "has long been the rule that each plaintiff in a diversity suit must independently satisfy the diversity statute’s jurisdictional amount in controversy. See Clark v. Paul Gray, Inc., 306 U.S. 583, 589, 59 S.Ct. 744, 83 L.Ed. 1001 (1939) (“when several plaintiffs assert separate and distinct demands in a single suit, the amount involved in each separate controversy must be of the requisite amount to be within the jurisdiction of the district court”); Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416, 60 L.Ed. 817 (1916) (same); Troy Bank v. Whitehead & Co., 222 U.S. 39, 40, 32 S.Ct. 9, 56 L.Ed. 81 (1911) (same). The Court has reasoned that § 1332’s two requirements— “diversity” and “matter in controversy”— are jurisdictional, and the statute’s grant of “original jurisdiction” to federal courts depends upon each and every plaintiff satisfying each of those requirements. The Supreme Court has also held that § 1332’s dual requirements generally apply in diversity-based class actions. Thus, in Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 366-67, 41 S.Ct. 338, 65 L.Ed. 673 (1921), the Court concluded that § 1332 mandates that each named plaintiff must be completely diverse from each named defendant, although unnamed plaintiffs need not be diverse. In Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), and Zahn, the Court applied the “matter in controversy” requirement even more strictly, holding that this requirement applied to both named and unnamed parties. In Snyder, the Court concluded that where no members of the plaintiff class possessed a claim meeting the “matter in controversy” requirement they could not aggregate their claims; and so a federal court had no jurisdiction over such a class action. Id. at 336, 89 S.Ct. 1053. The Court relied on the century-long congressional practice of narrowing rather than expanding diversity jurisdiction. It noted that “since the first judiciary act in 1789” Congress has repeatedly increased the amount necessary to meet the “matter in controversy” requirement and, when doing so, re-enacted the “matter in controversy” rule “against a background of judicial interpretation” that restrictively construed it. Snyder,"
},
{
"docid": "22266553",
"title": "",
"text": "was filed, and before any action by the defendants, defendants were served with an Amendment to Complaint striking the name of C. J. Bowman as party plaintiff and adding as plaintiffs Grace W. York, who was alleged to be still holding notes in the amount of $6,000, and Eunice E. Eastman, who had held notes in the amount of $10,000, but had been induced to part with them on the same terms as had the original plaintiffs. But the court, without accepting the amendment, granted the motion of the Trust Company and of Whitney, one of the Morgan partners, to dismiss the action for want of jurisdiction. Diversity of citizenship between each of the plaintiffs and each of the defendants was alleged; the sole question is whether or not the amount in controversy exceeds, exclusive, of interest and costs, $3,000. 28 U.S.C.A. § 41(1). Of the original plaintiffs, only C. J. Bowman held notes in excess of $3,000; but since his loss was not more than half the value of the notes held, he cannot supply the jurisdictional amount. Hence as to these plaintiffs, this amount can be found only by an aggregation of their claims. Appellants’ objections to the timeliness or form of the motion to dismiss are unavailing, as jurisdictional issues may be raised by the court at any time on its own' motion. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001; Federal Rule 12(h), 28 U.S.C.A. following section 723c. It is well settled that when two or more plaintiffs, each having a separate and distinct demand, join in a single suit, the demand of each must be of the requisite jurisdictional amount. Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817. Aggregation to make up the jurisdictional amount is permitted only when the claims are of a joint nature, as when it is sought to enforce a single title in which the plaintiffs have a common interest. Shields v. Thomas, 17 How. 3, 58 U.S. 3, 15 L.Ed. 93; Troy Bank v. G. A. Whitehead & Co., 222"
},
{
"docid": "6175361",
"title": "",
"text": "For the reasons that follow, we disagree. 1. Aggregation in General The rule against aggregating the claims of multiple plaintiffs for purposes of determining the amount in controversy dates back at least to 1832. See Oliver v. Alexander, 31 U.S. (6 Pet.) 143, 148, 8 L.Ed. 349 (1832). More recently, in 1911, the Supreme Court held that two plaintiffs could not aggregate their claims arising out of distinct promissory notes payable to each plaintiff by the defendant. See Troy Bank v. G.A. Whitehead & Co., 222 U.S. 39, 32 S.Ct. 9, 56 L.Ed. 81 (1911). In the Court’s words, “[w]hen two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount.” Id. at 40, 32 S.Ct. 9. The Court in Troy Bank also recognized an exception to the anti-aggregation rule that was nearly as old as the rule itself. “[W]hen several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount.” Id. at 40—41, 32 S.Ct. 9 (citing Shields v. Thomas, 58 U.S. (17 How.) 3, 4-5 (1854)). Based on the exception, the Court held in Troy Bank that the two plaintiffs could aggregate their claims based on a vendor’s lien that they owned jointly. See Troy Bank, 222 U.S. at 41, 32 S.Ct. 9; see also Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939); Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817 (1916). In Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), the Supreme Court rejected an argument that recent amendments to Rule 23 had changed the rule to allow aggregation in class actions. It reiterated that aggregation to meet the amount-in-controversy requirement was permissible only “(1) in cases in which a single plaintiff seeks to aggregate two or more of his own claims against a single defendant and (2) in cases in"
}
] |
487223 | particularly sound inasmuch as the court will require the scope of the amended pleading to stay within the ambit of the conduct, transaction or occurrence set forth in the original pleading. [Emphasis in original.] “ ‘The courts seem to concentrate on the notice and identity of interest factors as they do in the case of amendments changing defendants. Thus, any amendment substituting a new plaintiff has been held to relate back if the added plaintiff is the real party in interest....’ “We further note that it has been held that an amendment adding a new party does relate back when the old and new parties have such an identity of interest so that such relation back would not be prejudicial. REDACTED 3 Moore’s Federal Practice, 2d ed., at 1043-45; 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, at 524. [Emphasis added.] “The standard which courts use in determining if an identity of interest exists, so as to allow relation back, is set out in 3 Moore’s Federal Practice, footnote 11, at 1044-45: “ ‘Courts articulating the “identity of interest” standard generally require a substantial relationship between the old and new parties with regard to the litigation, as well as a sufficiently analogous legal position within the lawsuit to preclude the assertion of a new cause of action. Many of these cases involve substituting or adding related corporations____’ ” 350 So.2d at 1047. The court in | [
{
"docid": "22237442",
"title": "",
"text": "to be that relation back will not apply to an amendment that substitutes or adds a new party for those named initially in the earlier timely pleadings. E. g., Longbottom v. Swaby, 5 Cir., 1968, 397 F.2d 45. The reasoning apparently is that such an addition amounts to the assertion of a “new cause of action,” and if an amendment were allowed to relate back in that situation, the purpose of the statute of limitations would be defeated. 3 Moore, Federal Practice ¶ 15.15 [4.-1], and cases cited therein. Of course the problem, so frequent in the law, comes from the fact that the conclusion in any given case is the announcement merely of a result, not a statement of reasons why. It is the common situation of circular analysis that begs the very question at issue. Thus, the amendment is often allowed if the new and the former parties have such an identity of interest that permitting the new party to enter would not be prejudicial. 3 Moore, Federal Practice ¶ 15.15 [4.-1], at 1043-45. But when will it not be prejudicial? — when the identity is such that the adversary had fair notice? And when is that?— when there is an identity of new with old. Illustrative of this process and result is the recent case of Snoqualmie Tribe of Indians ex rel. Skykomish Tribe of Indians v. United States, 1967, 372 F.2d 951, 178 Ct.Cl. 570. In that case the Snoqualmie Tribe was proescuting an action against the United States based on alleged inequity in a certain treaty with various Indian tribes. The Snoqualmie sought to amend their complaint to include a representative claim on behalf of another tribe, the Skykomish, which is now extinct. The principal issue was whether the amendment would be allowed to relate back to the original petition, thus avoiding the Indian Commission’s statute of limitations. The Court of Claims held that even though the amendment appeared to introduce a “new party and a new cause of action,” the amendment would be allowed to relate back. The Court explained its decision in this"
}
] | [
{
"docid": "10929731",
"title": "",
"text": "that statutes of limitation are intended to afford. Thus, if the original pleading gives fair notice of the general fact situation out of which the claim or defense arises, an amendment which merely makes more specific what has already been alleged, . . . will relate back even though the statute of limitations has run in the interim. . . . And an amendment which changes only the legal theory of the action, or adds another claim arising out of the same transaction or occurrence, will relate back.” 3 Moore’s Federal Practice, ¶ 15.15(3) at pp. 1025-30 (2d Ed. 1968). It is clear the new claims asserted by plaintiffs in the amended pleadings arose out of and are related to the alleged ongoing scheme to defraud Home-Stake investors. The Court finds that the defendants were given fair notice of the occurrence from which the complained of conduct and activities arose. Also, Rule 15(c) should be liberally applied, especially if no disadvantage will accrue to the opposing parties. 1A Barron and Holtzoff, Federal Practice and Procedure § 448 (Wright E.D.1960). See also United States v. Hougham, 364 U.S. 310, 316, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960). The Court finds that no disadvantage accrued to the attorney defendants, defendant Trippett or defendant Keplinger since they were the subjects of claims under plaintiffs’ original complaints. The attorney defendants in a footnote on page 28 of their statute of limitations reply brief challenge the attorney defendants’ inclusion in the additions to plaintiffs’ amended complaints. In Travelers Indemnity Company v. United States, 382 F.2d 103, 106 (10th Cir. 1967) the Court stated: “Nor is the purpose of the federal rules furthered by denying the addition of a party who has a close identity of interest with the old party when the added party will not be prejudiced. The ends of justice are not served when forfeiture of just claims because of technical rules is allowed. Thus the reasons amendments are to be granted freely as justice requires, and the trial court’s discretion to allow amendment will not be upset unless a clear abuse of"
},
{
"docid": "12389968",
"title": "",
"text": "Rule 39(c), identical to RCFC 15(c)); Snoqualmie Tribe of Indians v. United States, 178 Ct.Cl. 570, 372 F.2d 951 (1967) (discussing the Court of Claim’s 1964 Rule 22(c), identical to RCFC 15(c)). RCFC Rule 15 provides: Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. In Castle, however, we allowed the intervention by an otherwise out-of-time litigant under the theory that it was the “real party in interest” under RCFC Rule 17(a) (providing that an action filed by a plaintiff other than the real party in interest may be amended to permit either the joinder or the substitution of the real party in interest, with the subsequent action to be treated as if it had been “commenced in the name of the real party in interest”). There, we explained that when a suit is commenced by one who arguably has an interest in the enforcement of the claim and the real party in interest is later brought into the litigation, the joinder or substitution of the real party in interest relates back for limitations purposes to the date of the original pleading. Castle, 48 Fed.Cl. at 194 (citing South African Marine Corp. v. United States, 640 F.Supp. 247, 253-54 (C.I.T.1986); Prevor-Mayorsohn Caribbean, Inc. v. Puerto Rico Marine Mgmt., Inc., 620 F.2d 1, 3 n. 2 (1st Cir.1980); Link Aviation, Inc. v. Downs, 325 F.2d 613, 614—615 (D.C.Cir.1963)). That was the case, we noted, since “the final sentence in Rule 17(a) is designed to avoid forfeiture and injustice when an understandable mistake has been made in selecting the party in whose name the action should be brought. Thus, a correction in parties is permitted even after the statute of limitations governing the action has run.” Id. at 194-195 (quoting 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1555 (2d ed.1990)). It should be noted, however, that as a matter both of"
},
{
"docid": "21476572",
"title": "",
"text": "which addressed whether and when a complaint amended to add new plaintiffs would relate back: In Manning v. Zapata, 350 So.2d 1045 (Ala.Civ.App.1977), the Court of Civil Appeals followed Board of Water and Sewer Commissioners of City of Mobile v. McDonald, [ ] 56 Ala.App. 426, 322 So.2d 717, cert. denied, 295 Ala. 392, 322 So.2d 722 (1975), in concluding that Rule 15(c) can be applied by analogy to amendments changing plaintiffs. That court explained: “The applicability of Rule 15(c) to amendments seeking to add new plaintiffs is put in its proper perspective in 6 Charles - Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 1501, at 523-24: “ ‘Although Rule 15(c) does not expressly apply to a new pleading adding or dropping plaintiffs, the Advisory Committee Note to the 1966 amendment of the rule indicates that the problem of relation back generally is easier to resolve in this context than when it is presented by a change in defendants and that the approach adopted in Rule 15(c) toward amendments affecting defendants extends by analogy to amendments changing plaintiffs. As long as defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action against him, his ability to' protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense. ' This seems particularly sound inasmuch as the court will require the scope of the amended pleading to stay within the ambit of the conduct, transaction or occurrence set forth in the original pleading. [Emphasis in original.] “ ‘The courts seem to concentrate on the notice and identity of interest factors as they do in the case of amendments changing defendants. Thus, any amendment substituting a new plaintiff has been held to relate back if the added plaintiff is the real party in interest....’ “We further note that it has been held that an amendment adding a new party does relate back when the old and new parties have such an identity of interest so"
},
{
"docid": "3700230",
"title": "",
"text": "Moreover, the fact that an amendment changes the legal theory on which the action was initially brought is of no consequence if the factual situation upon which the action depends remains the same and has been brought to defendant’s attention by the original pleading.... Indeed, an amendment that states an entirely new claim for relief will relate back as long as it satisfies the test embodied in the first sentence of Rule 15(c). 6A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1497, at 94-99 (2d ed.1990) (citations omitted). Plaintiffs’ new claims fit neatly within this Rule. Defendants were clearly on notice that the gravamen of Plaintiffs’ case was Defendants’ efforts to increase sales through allegedly fraudulent sales tactics and improper accounting. Particularly as this is a class action, in which amended class complaints are typical, Defendants have not been prejudiced. Plaintiffs’ clarification and recasting of some of them claims upon further investigation is par for the course. As the Second Circuit stated, “[w]hen a suit is filed in a federal court under the Rules, the defendant knows that the whole transaction described in it will be fully sifted, by amendment if need be.” Siegel v. Converters Transp., Inc., 714 F.2d 213, 216 (2d Cir.1983). Defendants would like to require almost an exact identity of new claims to old. However, that is not what Rule 15(c) requires. Rather, Plaintiffs’ new claims arose out of the same conduct, transaction' — or, in this case, action — or occurrence set forth in the original Complaint, and thus relate back for purposes of Rule 15(c). VI. CONCLUSION For the reasons set forth above, this Court denies Defendants’ Motion to Dismiss. The Court will enter an appropriate order. . Defendants also allege that the Company's loading practices were known to the public through various analyst reports, which Defendants have included in their filings. Defendants contend that the Court should consider these reports because they undermine Plaintiffs’ allegation that the Company's loading was not disclosed during the class period. As a general rule, a court ruling on a"
},
{
"docid": "22916635",
"title": "",
"text": "in the margin herein. It is well settled that the Federal Rules of Civil Procedure are to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits and to dispense with technical procedural problems. To this end, amendments pursuant to Rule 15(c) should be freely allowed. Further, the cases clearly state that notice is the critical element involved in Rule 15(c) determinations. DeFranco v. United States, 5.D.Cal., 18 F.R.D. 156, 161 (1955); Williams v. United States, 5 Cir., 405 F.2d 234, 238-239 (1968); 3 J. Moore, Federal Practice ¶ 15.15(3), at 1025 (2d ed. 1974). When Staren and Company, Inc., was substituted as plaintiff in the amended complaint, the district court and defendants contended that this corporate plaintiff constituted a complete separate entity from the individual plaintiffs and its claim did not relate back, but rather it stated an entirely new cause of action. This contention misses the point and is not necessarily so. The emphasis is to be placed on the determination of whether the amended complaint arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading. The substitution of such parties after the applicable statute of limitations may have run is not significant when the change is merely formal and in no way alters the known facts and issues on which the action is based. The courts have freely upheld the filing of an amended complaint under these circumstances. Finally, the substituted corporate plaintiff had such an identity of interest with the individual plaintiffs that the original complaint served to notify defendant American of the actual claim being asserted against it, with no resulting prejudice to its interests. To quote from Professor Moore again, new parties may be added (or substituted) in an action “when the new and old parties have such an identity of interest that it can be assumed, or proved, that relation back is not prejudicial.” 3 J. Moore, supra, ¶ 15.15 (4. — 1), at 1043—1045; Brauer v. Republic Steel Corporation, 10 Cir., 460 F.2d 801, 804"
},
{
"docid": "5363781",
"title": "",
"text": "years later. Thus, according to Ford, the putative class members’ benefit claims are untimely. However, even assuming that the 1996 letter caused the claims of putative class members to accrue for statute of limitations purposes, I conclude that, pursuant to Fed. R.Civ.P. 15(e), the amended complaint asserting the class claims relates back to July 28, 2000, when plaintiff filed her original complaint against Ford. Accordingly, the benefit claims of putative class members are not untimely. Rule 15(c) provides that an amended pleading relates back to the date of the original pleading when the claim asserted “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Fed.R.Civ.P. 15(c)(2). The rule is based on the notion that once litigation involving particular conduct or a given transaction or occurrence has been commenced, the parties are not entitled to the protection of the statute of limitations against the later assertion by amendment of claims that arise out of the same conduct, transaction or occurrence. 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1496 (2d ed.1990). Thus, under the rule, amendments meeting such standard relate back to the date of the initial pleading. Id. Although Rule 15(c) does not expressly apply to a new pleading adding plaintiffs (as opposed to defendants), the Advisory Committee Note to the 1966 amendment indicates that the problem of relation back generally is easier to resolve when plaintiffs are added, and that the approach adopted in Rule 15(c) toward amendments adding defendants extends by analogy to amendments adding plaintiffs. Wright, Miller & Kane, swpra, § 1501. Thus, as long as a defendant is fully apprised of a claim arising from specific conduct and has prepared to defend the action, his ability to protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense. Id.; see also Paskuly v. Marshall Field & Co., 494 F.Supp. 687, 688-89 (N.D.Ill.1980), aff'd, 646 F.2d 1210 (7th Cir.1981); see also Staren v. Am. Nat’l"
},
{
"docid": "1787691",
"title": "",
"text": "question presented is whether the motion should be granted and allowed to relate back pursuant to Rule 15(c). Rule 15(c) deals with the relation back of amendments, including those changing parties.’ It should be read to gether with the general provision in Rule 15(a) that leave to amend shall be freely given when justice so requires. Essentially, it provides that whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, the amendment will relate back to the date of the original pleading. The rule was amended in 1966 to indicate more clearly when an amendment changing a party should be allowed to relate back. While the new portion refers to an amendment changing the party against whom a claim is asserted, the Advisory Committee Notes make it clear that it is equally applicable to an amendment changing a plaintiff. Notwithstanding the changing party language of the rule and the accompanying Advisory Committee Note, some of the cases contain general language to the effect that relation back will not apply to an amendment that substitutes or adds a new party for those named in the earlier timely pleadings. See, e. g., Longbottom v. Swaby, 397 F.2d 45 (5th Cir. 1968) and Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479 (6th Cir. 1973). Such amendment is said to assert a new cause of action and if allowed to relate back would defeat the purpose of the statute of limitations. See, Moore, Federal Practice 15.15 [4.-1] and eases cited therein. However, there have developed a number of exceptions to this general rule. In one set of exceptions the parties before the court remain the same and the amendment merely changes the capacity in which they sue or corrects a misnomer in the complaint. In another group of eases, parties are allowed to substitute other parties where: (1) the moving party can show an identity of interest between the new and former party, e. g. parent and subsidiary; (2) the joined defendant’s bad faith conduct is held to estop"
},
{
"docid": "5396784",
"title": "",
"text": "parties agree, therefore, that the new allegations in the TAC are time-barred unless they “relate back” to the earlier complaint. Federal Rule of Civil Procedure 15(c) governs whether new allegations in an amended complaint which would otherwise be time-barred may proceed on grounds that they relate back to an earlier timely pleading. In pertinent part, the rule states, “An amendment of a pleading relates back to the date of the original pleading when ... (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading.” Fed.R.Civ.P. 15(c). In applying this test, the critical inquiry is “ ‘whether adequate notice of the matters raised in the amended pleading has been given to the opposing party within the statute of limitations’ by the general fact situation alleged in the original pleading.” Stevelman v. Alias Research, Inc., 174 F.3d 79, 87 (2d Cir.1999) (citation omitted); Lind v. Vanguard Offset Printers, Inc., 857 F.Supp. 1060, 1068 (S.D.N.Y.1994) (“The relation back doctrine is designed to ensure that an opposing party has been given adequate notice, for statute of limitations purposes, of the claim arising out of the transaction or occurrence which spawned the litigation.”). The rule is generally construed liberally so long as the defendant has not been prejudiced by the amendment. See In re Campbell Soup Co. Sec. Litig., 145 F.Supp.2d 574, 602 (D.N.J.2001); Pucci v. Litwin, 828 F.Supp. 1285, 1296 (N.D.Ill.1993). See also 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1471 (2d ed.1990) (noting that the flexibility of Rule 15 serves the overall purposes of the flexible pleading requirements of the federal rules: encouraging decisions on the merits rather than procedural technicalities, and moving away from fact-pleading toward notice-pleading). However, if the alteration of the original statement is so substantial that it cannot be said that defendant was given adequate notice of the conduct, transaction, or occurrence that forms the basis of the claim or defense, then the amendment will not relate back and will be time barred if the limitations"
},
{
"docid": "21476575",
"title": "",
"text": "related back. That court reasoned that because (1) there was the requisite “identity of interest,” (2) the claim arose out of the same conduct, transaction, or occurrence as set forth in the original complaint, and (3) the defendant was given notice when the initial complaint was filed, the defendant was, therefore, not prejudiced by the amendment and it should relate back. See also, English v. State, 585 So.2d 910, 911-12 (Ala.1991) (emphasis added). In the instant case, an identity of interest exists between the old and new parties to the litigation. The added putative class members share the same interest as the old class members in interpretation of Chrysler Financial’s financing arrangements. Both old and new putative class members seek a determination of whether Chrysler Financial created documents which represented that they were ’being charged a finance charge and which hid the existence of a percentage earned on the finance charge by auto dealers who financed through Chrysler Financial. Finally, the new putative class members share the same legal position as the original putative class members—that is, that Chrysler Financial fraudulently misrepresented the content of its finance agreements. Chrysler Financial was not prejudiced by the amendment. Chrysler’s defense to the claims of the new class members will be the same as that raised against the prior class members and will not require any substantial alteration. • The third requirement is that the claims of the new class members arise “out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” An action will not arise out of the same “conduct, transaction or occurrence” if it grows out of different events than those events that are stated in the original complaint. McClendon v. City of Boaz, 395 So.2d 21, 26 (Ala.1981). The determination of whether different events are involved depends on whether “[t]he acts that form the basis of the [added actions] were distinctly different, both in time as well as in regard to conduct, from the acts that formed the basis of [the original action filed by the original plaintiffis) ].”"
},
{
"docid": "7448566",
"title": "",
"text": "Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Fed. R. Civ. Proc. 15(c). Rule 15(c)(2) requires only that the amended pleadings share with the original pleading a “common core of operative facts.” USX Corp. v. Barnhart, 395 F.3d 161, 167 (3d Cir.2004). In his original pleading, Stewart alleges similar facts surrounding his eviction, the changing of his locks, and the destruction of his property, all occurring around dates similar to those alleged in his amended complaint. Stewart’s claims against PHA therefore arise out of the same “conduct, transaction, and occurrences” alleged in his original pleading, in satisfaction of Rule 15(c)(2). Rule 15(c) (3)(A) permits amendments adding a party where the added party had notice of the action within 120 days of the filing of the original complaint, and the newly named party would not be prejudiced. Courts have found adequate notice and a lack of prejudice where the newly named party shares the same attorneys as, and has an identity of interests with, the existing parties. Smith v. City of Phila., 363 F.Supp.2d 795, 801 (E.D.Pa.2005) (discussing the “identity of interests” and “shared attorney” tests). Parties share an identity of interest where they are “so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other.” 6A Charles A. Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 1499, p. 146 (2d ed.1990). In Smith, this Court determined that a civil rights plaintiff alleging excessive force by the Philadelphia Police Department properly replaced “John Does” with the parties’ real names because the newly named parties held supervisory positions in the police department, such that they had a “sufficient"
},
{
"docid": "23303726",
"title": "",
"text": "“relation back” principally on the ground that they and their claims lacked a sufficient identity of interest with the original plaintiff and its claims. Cape Arm, 171 F.Supp.2d at 30. This was a quintessentially legal determination, made on undisputed facts, and thus engenders de novo review. The guideposts for evaluating whether two parties possess a sufficient identity of interest to permit relation back are not well-defined. As to defendants, identity of interest typically means that parties are “so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other.” Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 197 (3d Cir.2001) (citing 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1499, at 146 (2d ed.1990)). “The substitution of such parties after the applicable statute of limitations may have run is not significant when the change is merely formal and in no way alters the known facts and issues on which the action is based.” Staren v. Am. Nat’l Bank & Trust Co., 529 F.2d 1257, 1263 (7th Cir.1976). The identity of interest requirement reflects this line of thought; it “ensures that the old and new plaintiffs are sufficiently related so that the new plaintiff was in effect involved in [the proceedings] unofficially from an early stage.” Leachman v. Beech Aircraft Corp., 694 F.2d 1301, 1309 (D.C.Cir.1982) (citation and internal quotation marks omitted). That formulation is not readily transfer-rable to plaintiffs. Nevertheless, it suggests that when a new plaintiff attempts to enter a pending action under the aegis of Rule 15(c)(3), courts should require substantial structural and corporate overlap to ensure that the defendant is not called upon to defend against new facts and issues. This, then, should be the focal point of the identity of interest requirement visa-vis a new plaintiff. The case law runs along these lines. See 3 Moore’s Federal Practice, supra, ¶ 15.19[3][c] (collecting cases). Some concrete examples may prove helpful. Courts have found a sufficient identity of interest when the original and"
},
{
"docid": "15957162",
"title": "",
"text": "a court will permit a party to add even a new legal theory in an amended pleading as long as it arises out of the same transaction or occurrence. Likewise, [a]n amendment that alleges added events leading up to the same injury may relate back. Miller v. American Heavy Lift Shipping, 231 F.3d at 247-48 (bold emphasis added, internal citations omitted). In addition, the Sixth Circuit rejected the use of two particular tests sometimes used by courts in deciding whether an amendment relates back under Rule 15(c)(2), which were “1) whether the evidence offered in support of the original claim would prove the new claim, and 2) whether the new claim alters the ‘when, where, what, or how’ of the alleged injury.” Miller, 231 F.3d at 250 n. 6 (emphasis added). The Sixth Circuit held that these tests were “too mechanical for the liberal approach of Rule 15(c).” Id. (citing 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1498, at 102-03). C. Pleading requirements in preference actions and the Original Complaint Defendants assert that the Amended Complaint cannot relate back to the date of the Original Complaint because the allegations in the Original Complaint itself failed to provide Defendants with “fair notice” of the preference claims against them, and therefore did not satisfy the pleading requirements of Fed.R Civ.P. 8(a). As Defendants put it: The only factual information provided [in the original Complaint] was aggregate totals of transfers alleged to have been made by certain Debtors to each of the Defendants; the only other allegations were naked recitals of certain statutory elements. The overall effect of the Debtors’ insufficiently pled first attempt at the complaint would have required Defendants] to engage in a guessing game to determine the dates of the checks, check numbers, the antecedent debt, the identity of the transferors, and the amount of the preference allegations. Because of the [Original] Complaint’s inadequacies, Defendants were] completely unable to perform new value, contemporaneous exchange, or ordinary course analyses. Defendants argue that to state a valid preference claim, Plaintiffs were required to"
},
{
"docid": "23303725",
"title": "",
"text": "Federal Practice, supra, ¶ 15.19[3][a], To separate wheat from chaff, we have laid down three separate requirements applicable to plaintiffs who seek succor under Rule 15(c)(3): [T]he amended complaint must arise out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; there must be a sufficient identity of interest between the new plaintiff, the old plaintiff, and their respective claims so that the defendants can be said to have been given fair notice of the latecomer’s claim against them; and undue prejudice must be absent. Allied Int’l, 814 F.2d at 35-36. We ordinarily review a trial court’s decision to grant or deny motions under Rule 15(c)(3) for abuse of discretion. E.g., id. at 37. It is, however, settled beyond peradventure that an error of law constitutes an abuse of discretion. See United States v. Keene, 287 F.3d 229, 233 (1st Cir.2002); In re Grand Jury Subpoena, 138 F.3d 442, 444 (1st Cir.1998). Here, the district court rejected the new plaintiffs’ claim that they were eligible for “relation back” principally on the ground that they and their claims lacked a sufficient identity of interest with the original plaintiff and its claims. Cape Arm, 171 F.Supp.2d at 30. This was a quintessentially legal determination, made on undisputed facts, and thus engenders de novo review. The guideposts for evaluating whether two parties possess a sufficient identity of interest to permit relation back are not well-defined. As to defendants, identity of interest typically means that parties are “so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other.” Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 197 (3d Cir.2001) (citing 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1499, at 146 (2d ed.1990)). “The substitution of such parties after the applicable statute of limitations may have run is not significant when the change is merely formal and in no way alters the known facts and issues on which the"
},
{
"docid": "21476574",
"title": "",
"text": "that such relation back would not be prejudicial. Williams v. United States, 405 F.2d 234 (5th Cir.1968); 3 Moore’s Federal Practice, 2d ed., at 1043-45; 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, at 524. [Emphasis added.] “The standard which courts use in determining if an identity of interest exists, so as to allow relation back, is set out in 3 Moore’s Federal Practice, footnote 11, at 1044-45: “ ‘Courts articulating the “identity of interest” standard generally require a substantial relationship between the old and new parties with regard to the litigation, as well as a sufficiently analogous legal position within the lawsuit to preclude the assertion of a new cause of action. Many of these cases involve substituting or adding related corporations____’ ” 350 So.2d at 1047. The court in Manning went on to hold that, in a subrogation suit, an amendment, which substituted the insurer (Standard Fire Insurance Company) who actually paid the insured’s claim for the insurer who initiated the proceedings (All Risk Insurance Company), related back. That court reasoned that because (1) there was the requisite “identity of interest,” (2) the claim arose out of the same conduct, transaction, or occurrence as set forth in the original complaint, and (3) the defendant was given notice when the initial complaint was filed, the defendant was, therefore, not prejudiced by the amendment and it should relate back. See also, English v. State, 585 So.2d 910, 911-12 (Ala.1991) (emphasis added). In the instant case, an identity of interest exists between the old and new parties to the litigation. The added putative class members share the same interest as the old class members in interpretation of Chrysler Financial’s financing arrangements. Both old and new putative class members seek a determination of whether Chrysler Financial created documents which represented that they were ’being charged a finance charge and which hid the existence of a percentage earned on the finance charge by auto dealers who financed through Chrysler Financial. Finally, the new putative class members share the same legal position as the original putative class"
},
{
"docid": "21476571",
"title": "",
"text": "of the complaint: An amendment of a pleading relates back to the date of the of the original pleading when ... (3) the amendment ... changes the party or the naming of the party against whom a claim is asserted if [the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original .pleading] and, within the applicable period of limitations or one hundred twenty (120) days of the commencement of the action, whichever comes later, the party to be brought in by amendment (A) has received notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party ... In Bank of Red Bay v. King, 482 So.2d 274, 279-80 (Ala.1985), the Alabama Supreme Court adopted the test stated in Manning v. Zapata, 350 So.2d 1045 (Ala.Civ.App.1977), which addressed whether and when a complaint amended to add new plaintiffs would relate back: In Manning v. Zapata, 350 So.2d 1045 (Ala.Civ.App.1977), the Court of Civil Appeals followed Board of Water and Sewer Commissioners of City of Mobile v. McDonald, [ ] 56 Ala.App. 426, 322 So.2d 717, cert. denied, 295 Ala. 392, 322 So.2d 722 (1975), in concluding that Rule 15(c) can be applied by analogy to amendments changing plaintiffs. That court explained: “The applicability of Rule 15(c) to amendments seeking to add new plaintiffs is put in its proper perspective in 6 Charles - Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 1501, at 523-24: “ ‘Although Rule 15(c) does not expressly apply to a new pleading adding or dropping plaintiffs, the Advisory Committee Note to the 1966 amendment of the rule indicates that the problem of relation back generally is easier to resolve in this context than when it is presented by a change in defendants and that the approach adopted in Rule 15(c) toward"
},
{
"docid": "17836841",
"title": "",
"text": "of limitations for the particular type of claim. Subsequently a 1991 amendment to Rule 15 expressly changed that wording of the rule because \"the Court reached a result in Schiavone ... that was inconsistent with the liberal pleading practices secured by Rule 8”; the amendment provides that an amended complaint relates back to the time the original complaint was filed if the new party was aware of the action within 120 days of that filing. In other words, the phrase \"within the period provided by law” applies not to the statute of limitations of the cause of action, but refers instead to the Rule 4m period (120 days). Rule 15 Advisory Note (1991) ¶ (c)(3). Thus the current requirements under the amended Rule 15(c) still are that a new party (1) receive notice of the action so as not to be prejudiced in maintaining a defense and (2) knew or should have known that the action would have been brought against it earlier but for a mistake of identity. Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1076 (2d Cir.1993), citing 3 James W. Moore & Richard D. Freer, Moore’s Federal Practice ¶ 15.15[4.-2] at 161 (2d ed.1993). See Skoczylas v. Federal Bureau of Prisons, 961 F.2d 543, 544-45 (5th Cir.1992)(under the amended Rule 15(c) “instead of requiring notice within the limitations period, relation back is allowed as long as the added party had notice within 120 days following the filing of the complaint or longer if good cause is shown. Fed.R.Civ.P. 4(j).”). . The Second Circuit, which questions whether an identity of interest exception exists, does not agree that the mere fact that a parent and wholly owned subsidiary are involved supports relation back and argues for evidence of the particular entanglement of the two entities: We assume for purposes of this discussion that an identity of interest exception exists. But it is clear that sufficient identity of interest to warrant imputation of notice is lacking in this case. Courts accepting that rationale have required substantial structural and corporate identity, such as shared organizers, officers, directors and offices"
},
{
"docid": "15957161",
"title": "",
"text": "grant a party leave to amend a complaint “freely ... when justice so requires.” This fundamental tenor of the Rules is one of liberality rather than technicality, and it creates an important context within which we decide cases under the modern Federal Rules of Civil Procedure. [W]hether a statute of limitations will be permitted to bar an amended claim turns on whether the amended claim arose out of the same conduct, transaction, or occurrence as that set forth in the original complaint: The rule is based on the notion that once litigation involving particular conduct or a given transaction or occurrence has been instituted, the parties are not entitled to the protection of the statute of limitations against the later assertion by amendment of defenses or claims that arise out of the same conduct, transaction, or occurrence as set forth in the original pleading. This court has stated that “the thrust of Rule 15 is to reinforce the principle that cases ‘should be tried on their merits rather than the technicalities of pleadings.’ ” Thus, a court will permit a party to add even a new legal theory in an amended pleading as long as it arises out of the same transaction or occurrence. Likewise, [a]n amendment that alleges added events leading up to the same injury may relate back. Miller v. American Heavy Lift Shipping, 231 F.3d at 247-48 (bold emphasis added, internal citations omitted). In addition, the Sixth Circuit rejected the use of two particular tests sometimes used by courts in deciding whether an amendment relates back under Rule 15(c)(2), which were “1) whether the evidence offered in support of the original claim would prove the new claim, and 2) whether the new claim alters the ‘when, where, what, or how’ of the alleged injury.” Miller, 231 F.3d at 250 n. 6 (emphasis added). The Sixth Circuit held that these tests were “too mechanical for the liberal approach of Rule 15(c).” Id. (citing 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1498, at 102-03). C. Pleading requirements in preference actions"
},
{
"docid": "2621782",
"title": "",
"text": "An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. Fed.R.Civ.P. 15(c). Although the relation back of amendments switching plaintiffs — as opposed to defendants — is not explicitly treated in Rule 15(c), “the attitude taken in [the rule] toward change of defendants extends by analogy to amendments changing plaintiffs.” Fed.R.Civ.P. 15(c) advisory committee note. Thus, when revision of a complaint has the effect of substituting a fresh plaintiff for the original one, three requirements must be met if the former’s claim is different and is to relate back: the amended complaint must arise out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; there must be a sufficient identity of interest between the new plaintiff, the old plaintiff, and their respective claims so that the defendants can be said to have been given fair notice of the latecomer’s claim against them; and undue prejudice must be absent. See Raynor Bros. v. American Cyanamid Co., 695 F.2d 382, 384-85 (9th Cir.1982); Staren v. American Nat’l Bank and Trust Co., 529 F.2d 1257, 1263 (7th Cir.1976); Unilever (Raw Materials) Ltd. v. M/T Stolt Boel, 77 F.R.D. 384, 390-91 (S.D.N.Y.1977). See also 3 J. Moore, Moore’s Federal Practice ¶ 15.15 [4.-2] (2d ed. 1984). We examine each of these factors in turn. In this case, it is clear beyond peradventure that APC’s claim for its lost profits depended upon exactly the same facts as were set out in the original complaint. Indeed, other than the change in the plaintiff’s identity, no new allegations were made. The conduct complained of was precisely the"
},
{
"docid": "21476573",
"title": "",
"text": "amendments affecting defendants extends by analogy to amendments changing plaintiffs. As long as defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action against him, his ability to' protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense. ' This seems particularly sound inasmuch as the court will require the scope of the amended pleading to stay within the ambit of the conduct, transaction or occurrence set forth in the original pleading. [Emphasis in original.] “ ‘The courts seem to concentrate on the notice and identity of interest factors as they do in the case of amendments changing defendants. Thus, any amendment substituting a new plaintiff has been held to relate back if the added plaintiff is the real party in interest....’ “We further note that it has been held that an amendment adding a new party does relate back when the old and new parties have such an identity of interest so that such relation back would not be prejudicial. Williams v. United States, 405 F.2d 234 (5th Cir.1968); 3 Moore’s Federal Practice, 2d ed., at 1043-45; 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, at 524. [Emphasis added.] “The standard which courts use in determining if an identity of interest exists, so as to allow relation back, is set out in 3 Moore’s Federal Practice, footnote 11, at 1044-45: “ ‘Courts articulating the “identity of interest” standard generally require a substantial relationship between the old and new parties with regard to the litigation, as well as a sufficiently analogous legal position within the lawsuit to preclude the assertion of a new cause of action. Many of these cases involve substituting or adding related corporations____’ ” 350 So.2d at 1047. The court in Manning went on to hold that, in a subrogation suit, an amendment, which substituted the insurer (Standard Fire Insurance Company) who actually paid the insured’s claim for the insurer who initiated the proceedings (All Risk Insurance Company),"
},
{
"docid": "2299425",
"title": "",
"text": "at 562)(noting that after the statute of limitations expires,. Rule 15(c) determines whether or not a plaintiff may amend a complaint to add a defendant by relating that amended complaint back to the original one); Ayala Serrano v. Collazo Torres, 650 F.Supp. 722, 726 (D.P.R.1986) (citations omitted)(noting that the doctrine of relation back is a question of federal procedure and operates independently of any state law). An amended complaint relates back to the filing of the original complaint when: l)the claim asserted in the amended complaint arises out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; 2)the party being added by the amendment received notice of the institution of the action within the time period specified in Federal Rule 4(m) for service of a summons and complaint and that new party will not be prejudiced in maintaining a defense on the merits; and 3)the party being added to the litigation knew or should have known that the action would have been brought against him or her but for a mistake as to the identity of the proper party. Fed.R.Civ.P. 15(c)(3); VKK Corp. v. Nat'l Football League, 244 F.3d 114, 128 (2d Cir.2001); Leonard v. Parry, 219 F.3d 25, 28 (1st Cir.2000); Freund v. Fleetwood Enters., Inc., 956 F.2d 354, 363 (1st Cir.1992); Velez, 145 F.Supp.2d at 153; Pineda v. Almacenes Pitusa, Inc., 982 F.Supp. 88, 96 (D.P.R.1997). When these three elements are satisfied, the amended pleading relates back to the original, meaning that it adopts the date of the original pleading for purposes of determining whether or not the statute of limitations has expired. Ayala Serrano, 650 F.Supp. at 725; 6A Charles Alen Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, § 1498, at 107 (2d ed. 1990 & Supp.2004). The relation-back doctrine ensures that litigants do not use the statute of limitations to prevent the litigation of claims when a real party in interest received sufficient notice of the proceedings or was practically involved in the proceed ings from the early states of the"
}
] |
17443 | subchapter. In an action brought under this paragraph, the district courts may order appropriate relief including money damages, injunctive relief against any action by an officer of the United States or any agency thereof contrary to this subchapter or regulations promulgated thereunder, or mandamus to compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this subchapter or regulations promulgated hereunder (including immediate injunctive relief to reverse a declination finding under section 450f(a)(2) of this title or to compel the Secretary to award and fund an approved self-determination contract). . Northwest Resource Info. Center v. National Marine Fisheries Service, 56 F.3d 1060, 1066 (9th Cir.1995) (National Environmental Protection Act); REDACTED Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir.1988), cert denied 493 U.S. 873, 110 S.Ct. 204, 107 L.Ed.2d 157 (1989) (Endangered Species Act); Franklin Sav. Ass’n v. Director, Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir.1991), cert denied 503 U.S. 937, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992) (FIRREA); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.1983) (Clean Water Act). . It is noteworthy that § 450m-l does not specifically authorize the court to remand back to the Secretary. . The parties assume that filing an action in federal district court necessarily forecloses an administrative hearing. That assumption may be unwarranted. The statute allows an appeal to be | [
{
"docid": "23529789",
"title": "",
"text": "had nothing further to present, and that the district court could decide the remaining claims on the merits based on the record before it. The district court entered judgment for defendants, issuing findings and conclusions on November 20, 1991. This timely appeal followed. II The AICA makes no specific provision for judicial review of agency decisions taken in pursuance of its requirements. Thus, the scope of review is governed by the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (\"APA\"). See Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir.), cert. denied, 493 U.S. 873, 110 S.Ct. 204, 107 L.Ed.2d 157 (1989) (looking to APA for standard of review applicable to agency action under Endangered Species Act). Under the APA, an agency’s decisions may be set aside only if \"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.\" 5 U.S.C. § 706(2)(A). The district court was thus called upon to determine only whether the Forest Service’s decisions challenged by Sierra Club were \"based on a consideration of the relevant factors\" and did not betray \"clear errors in judgment.\" Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989). Review under this standard is to be \"searching and careful,\" but remains \"narrow,\" and a court is not to substitute its judgment for that of the agency. Id. This is especially appropriate where, as here, the challenged decision implicates substantial agency expertise. See United States v. Alpine Land and Reservoir Co., 887 F.2d 207, 213 (9th Cir.1989) (\"Deference to an agency’s technical expertise and experience is particularly warranted with respect to questions involving . . . scientific matters.\"), cert. denied, 498 U.S. 817, 111 S.Ct. 60, 112 L.Ed.2d 35 (1990). The district court’s conclusions of law rest on its interpretation of the AICA and are therefore reviewed de novo. See, e.g., United States v. City of Rancho Palos Verdes, 841 F.2d 329, 330 (9th Cir.1988) (reviewing interpretation of the Endangered Species Act de novo). The court’s findings of fact are reviewed for clear error. Securities & Exchange Comm’n"
}
] | [
{
"docid": "17443333",
"title": "",
"text": "having jurisdiction over the relevant endangered species. 16 U.S.C. 1536(a)(3). The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), are jointly responsible for administering the ESA. 50 C.F.R. 402.01(b) (1992). The consulting service then issues a biological opinion that details how the proposed action “affects the species or its critical habitat,” including the impact of incidental takings of the species. 16 U.S.C. 1536(b)(3)(A). “The agency is not required to adopt the alternatives suggested in the biological opinion; however, if the Secretary deviates from them, he does so subject to the risk that he has not satisfied the standard of Section 7(a)(2).” Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir.1988) (citation omitted), cert. denied, 493 U.S. 873, 110 S.Ct. 204, 107 L.Ed.2d 157 (1989). A Secretary can depart from the suggestions in a biological opinion, and so long as he or she takes “alternative, reasonably adequate steps to insure the continued existence of any endangered or threatened species, ” no ESA violation occurs. Id. at 1193 95; Pyramid Lake Paiute Tribe of Indians v. Department of Navy, 898 F.2d 1410, 1418 (9th Cir.1990) (“a non Interior agency is given discretion to decide whether to implement conservation recommendations put forth by the FWS”). The Joint Regulations state: The Service may provide with the biological opinion a statement containing discretionary conservation recommendations. Conservation recommendations are advisory and are not intended to carry any binding legal force. 50 C.F.R. 402.14(3) (1992). 50 C.F.R. 402.15(a) states: [ ] Following the issuance of a biological opinion, the Federal agency shall determine whether and in what manner to proceed with the action in light of its section 7 obligations and the Service’s biological opinion. Courts have attempted to define the “point of commitment,” at which the filing of an EIS is required, during the planning process of a federal project. See Sierra Club v. Peterson, 717 F.2d 1409, 1414 (D.C.Cir.1983). “An EIS must be prepared before any irreversible and irretrievable commitment of resources.” Conner v. Burford, 848 F.2d 1441, 1446 (9th Cir.1988), cert. denied 489 U.S. 1012, 109"
},
{
"docid": "8637924",
"title": "",
"text": "2. Plaintiffs Motion for Partial Summary Judgment (docket #30) is granted in part and denied in part as follows: a. GRANTED as to the Eighth Claim; and b. DENIED as to the Fourth, Sixth, Seventh, Ninth and Tenth Claims. 3. Defendants’ cross Motion for Summary Judgment (docket #37) is granted in part and denied in part as follows: a. DENIED as moot as to the First, Second, Third, and Fifth Claims; b. GRANTED as to the Seventh Claim; and e. DENIED as to the Fourth, Sixth, Eighth, Ninth and Tenth Claims. Accordingly: 1. On the Seventh Claim, defendants are entitled to entry of judgment in their favor; 2. On the Eighth Claim, plaintiff is entitled to entry of a judgment in its favor declaring that defendants’ declination to award the Headquarters Office portion of the Tribal Shares Contract Proposal for FY 1996 violates 25 U.S.C. §§ 450f(a), 450j-l(a), (b) and (g), and is entitled to a permanent injunction requiring defendants to award the appropriate amount. The issues of the appropriate amount, any monetary damages, prejudgment interest, and costs of suit, including attorney fees, remain pending; and 3. The Fourth, Sixth, Ninth and Tenth Claims will be set for an evidentiary hearing. . The Acting IHS Portland Area Director is now • Joyce Reyes. . At this point, the Shoshone-Bannoek Tribes are not challenging the tribal share of the Service Unit, but rather are challenging only the tribal share of the Area and Headquarters administrative functions. . 25 U.S.C. § 450m-l(a) provides as follows: The United States district courts shall have original jurisdiction over any civil action or claim against the appropriate Secretary arising under this subchapter and, subject to the provisions of subsection (d) of this section and concurrent with the United States court of Claims, over any civil action or claim against the Secretary for money damages arising under contracts authorized by this subchapter. In an action brought under this paragraph, the district courts may order appropriate relief including money damages, injunctive relief against any action by an officer of the United States or any agency thereof contrary to"
},
{
"docid": "15138577",
"title": "",
"text": "United States district courts shall have original jurisdiction over any civil action or claim against the appropriate Secretary arising under this subchapter and, subject to the provisions of subsection (d) of this section and concurrent with the United States Court of Claims, over any civil action or claim against the Secretary for money damages arising under contracts authorized by this sub-chapter. In an action brought under this paragraph, the district courts may order appropriate relief including money damages, injunctive relief against any action by an officer of the United States or any agency thereof contrary to this subchapter or regulations promulgated thereunder, or mandamus to compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this subchapter or regulations promulgated hereunder (including immediate injunctive relief to reverse a declination finding under section 450f(a)(2) of this title or to compel the Secretary to award and fund an approved self-determination contract). 25 U.S.C. § 450m-l(a). Under the Administrative Procedure Act (“APA”), the reviewing court must determine whether the administrative decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Parties dispute the standard under which the Court should review the IBIA decision. Plaintiff maintains that the Court should engage in de novo review, PL’s Mot. at 4; Defendants counter that the appropriate standard is “arbitrary and capricious,” Def.’s Mot. for Summ. J. at 4-5 (“Def.’s Mot.”). The issue appears to be one of first impression in this Circuit. Both the Supreme Court and our Court of Appeals have declared that where a statute does not provide a standard of review, as is true of the ISDA, courts must look to the APA standard. See United States v. Carlo Bianchi & Co., 373 U.S. 709, 715, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963) (“Indeed, in cases where Congress has simply provided for review, without setting forth the standards to be used or the procedures to be followed, this Court has held that consideration is to be confined to the administrative record and that no de"
},
{
"docid": "15138621",
"title": "",
"text": "in such review. Cf. PL's Mot. at 4-6 (construing case to support its argument for de novo review). . While district courts in other jurisdictions have construed the standard of review under the ISDA, they have disagreed on the appropriate standard to be applied. See Cheyenne River Sioux Tribe v. Kempthome, 496 F.Supp.2d 1059 (D.S.D.2007) (finding de novo review to be appropriate); Cherokee Nation of Okla. v. United States, 190 F.Supp.2d 1248 (E.D.Okla.2001), rev’d on other grounds by Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631, 125 S.Ct. 1172, 161 L.Ed.2d 66 (2005) (same); Shoshone-Bannock Tribes of the Fort Hall Reservation v. Shalala, 988 F.Supp. 1306 (D.Or.1997) (same); Suquamish Tribe v. Deer, No. 96-5468 (W.D.Wash. Sept. 2, 1997) (unpublished) (finding APA standard to be appropriate); Cal. Rural Indian Health Bd., Inc. v. Shalala, No. 96-3526 (N.D.Cal. Apr. 24, 1997) (unpublished) (same); Yukon-Kuskokwim Health Corp. v. Shalala, No. 96-155 (D.Alaska Apr. 15, 1997) (unpublished) (same). .See also Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, 736 (D.C.Cir.2001); Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1467 (D.C.Cir.1995); Northwest Resource Info. Ctr. v. Nat’l Marine Fisheries Serv., 56 F.3d 1060, 1066 (9th Cir.1995); Franklin Sav. Ass’n v. Dir., Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir.1991); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir.1983); Cabinet Mountains Wilderness/Scotchman’s Peak Grizzly Bears v. Peterson, 685 F.2d 678, 685 (D.C.Cir.1982); Nat'l Mining Ass’n v. Chao, 160 F.Supp.2d 47, 56 (D.D.C.2001), aff'd in part and rev’d in part on other grounds by Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849 (D.C.Cir.2002) (\"The D.C. Circuit recently reaffirmed the principle of law that the APA provides a default standard of review where a statute does not otherwise provide a standard.”). . Rule 19 has changed since the Wichita decision was issued. Compare Wichita, 788 F.2d at 774 (laying out Rule as it existed), with Fed.R.Civ.P. 19. Nonetheless, the basic concept of the joinder rule remains unchanged, and thus the reasoning in the case is instructive. . Joinder of necessary parties is not feasible, as tribes"
},
{
"docid": "12870941",
"title": "",
"text": "lawsuit centers around how much the defendants possibly owe in alleged damages to plaintiffs for failure to fulfill the terms of their contracts. Thus, it appears to this court their request can properly be termed as one for money damages. Bowen v. Massachusetts, 487 U.S. 879, 895, 900-901, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). As a result, this lawsuit is properly brought under the Contract Disputes Act and the de novo standard applies. Even if the court had found the plaintiffs’ case was not properly brought under the Contract Disputes Act, the court would have found the standard of review for an action brought pursuant to the ISDA to be de novo. In interpreting a statute, the function of the court is simple. It is to “construe the language so as to give effect to the intent of Congress.” United States v. American Trucking Associations, 310 U.S. 534, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940). “There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.” Id. 25 U.S.C. § 450m-l(a) provides: The United States district courts shall have original jurisdiction over any civil action or claim against the appropriate Secretary arising under this subchapter and, subject to the provisions of subsection (d) of this section and concurrent with the United States Court of Claims, over any civil action or claim against the Secretary for money damages arising under contracts authorized by this sub-chapter. In an action brought under this paragraph, the district courts may order appropriate relief including money damages, injunctive relief against any action by an officer of the United States or any agency thereof contrary to this subchapter or regulations promulgated thereunder, or mandamus to compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this subchapter or regulations promulgated hereunder (including immediate injunctive relief to reverse a declination finding under section 450f(a)(2) of this title or to compel the Secretary to award and fund an approved self-determination contract)."
},
{
"docid": "18029152",
"title": "",
"text": "review to be applied to the Colorado Public Utilities Commission’s decision approving certain interconnection agreements pursuant to 47 U.S.C. § 252(e)(1). This Court has jurisdiction over the consolidated eases pursuant to 47 U.S.C. § 252(e)(6) which states that “[i]n any case in which a State commission makes a determination under this section, any party aggrieved by such determination may bring an action in an appropriate Federal district court to determine whether the agreement or statement meets the requirements of section 251 of this title and this section.” Further, Section 252(e)(4) provides that “[n]o State court shall have jurisdiction to review the action of a State commission in approving or rejecting an agreement under this section.” The Act does not elucidate either the scope of review or the standard of review that should apply to consideration of the issues before me. Further, it does not appear that, to date, any other federal court has determined the appropriate standard of review. In my Order on Intervention, Discovery and Scope of Review Matters dated August 5, 1997, I previously decided that the scope of review in this case is limited to the administrative record. See United States v. Carlo Bianchi and Co., 373 U.S. 709, 714, 83 S.Ct. 1409, 1413, 10 L.Ed.2d 652 (1963) (“where Congress has simply provided for review, without setting forth the standards to be used or the procedures to be followed, ... consideration is to be confined to the administrative record”); Franklin Savings Ass’n v. Director, Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir.1991), cert. denied, 503 U.S. 937, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992) (same). The scope of review is different than the standard of review. Franklin Savings Ass’n, 934 F.2d at 1136. As the Tenth Circuit explained in Franklin: The scope of judicial review refers merely to the evidence the reviewing court will examine in reviewing an agency decision. The standard of judicial review refers to how the reviewing court will examine that evidence. Id. In determining the standard of review, it is necessary to understand the Act’s statutory scheme as it applies to"
},
{
"docid": "15138576",
"title": "",
"text": "arrangements.” Id. at 14. Facing denial of these funds, and unable to challenge the application of the funding formula in Norton, the Plaintiff then brought two key issues to the IBIA: first, Collier’s effect on factor three of the funding formula, and, second, whether the 1988 data the Department had been using to calculate the formula should be adjusted annually. IBIA Decision, at 166-67. The IBIA held that CPN was collaterally estopped from litigating the effect of Collier, id. at 167, and that the Director did not abuse his discretion in finding that the parties intended the 1988 formula to be applied in a static manner, i.e., without annual updating, id. at 173. CPN challenges that decision in the case now before this Court. II. STANDARD OF REVIEW A. Standard of Review for the IBIA Decision CPN states in its Complaint that “a claim for relief exists under both the ISDA, 25 U.S.C. § 450m-l(a) and the Administrative Procedures [sic] Act, 5 U.S.C. §§ 702-706.” Compl. at ¶5. The ISDA provision reads as follows: The United States district courts shall have original jurisdiction over any civil action or claim against the appropriate Secretary arising under this subchapter and, subject to the provisions of subsection (d) of this section and concurrent with the United States Court of Claims, over any civil action or claim against the Secretary for money damages arising under contracts authorized by this sub-chapter. In an action brought under this paragraph, the district courts may order appropriate relief including money damages, injunctive relief against any action by an officer of the United States or any agency thereof contrary to this subchapter or regulations promulgated thereunder, or mandamus to compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this subchapter or regulations promulgated hereunder (including immediate injunctive relief to reverse a declination finding under section 450f(a)(2) of this title or to compel the Secretary to award and fund an approved self-determination contract). 25 U.S.C. § 450m-l(a). Under the Administrative Procedure Act (“APA”), the reviewing court must determine whether the"
},
{
"docid": "12870942",
"title": "",
"text": "which the legislature undertook to give expression to its wishes.” Id. 25 U.S.C. § 450m-l(a) provides: The United States district courts shall have original jurisdiction over any civil action or claim against the appropriate Secretary arising under this subchapter and, subject to the provisions of subsection (d) of this section and concurrent with the United States Court of Claims, over any civil action or claim against the Secretary for money damages arising under contracts authorized by this sub-chapter. In an action brought under this paragraph, the district courts may order appropriate relief including money damages, injunctive relief against any action by an officer of the United States or any agency thereof contrary to this subchapter or regulations promulgated thereunder, or mandamus to compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this subchapter or regulations promulgated hereunder (including immediate injunctive relief to reverse a declination finding under section 450f(a)(2) of this title or to compel the Secretary to award and fund an approved self-determination contract). It is well-settled law that when a statute provides for judicial review but fails to set-forth the standards for that review, the court looks to the APA for guidance. United States v. Carlo Bianchi & Company, 373 U.S. 709, 715, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963). The APA standard of review requires a court to determine if the decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). It also limits review to the administrative record. 5 U.S.C. § 706. However, it has been noted that when Congress intends review to be confined to the administrative record, it so indicates, either expressly or by use of a term like “substantial evidence”. Chandler v. Roudebush, 425 U.S. 840, 862, n. 37, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). It is clear from the plain language of the statute there is no such language indicating that review under the ISDA is limited to the restrictive APA standard. In fact, this court finds the plain language of"
},
{
"docid": "17443332",
"title": "",
"text": "and implementing the RPA articulated in that biological opinion. Id. at 1394-95. The federal defendants in Westlands argued that the biological opinion was not a “major federal action” because it was merely advisory. Id. at 1420 (citing 40 C.F.R. 1508.18(b)(3)). The Westlands plaintiffs, as the Plaintiffs do here, suggested that the biological opinion and RPA at issue effectively bound Reclamation because Reclamation “must either follow the alternative suggested or risk violation of ESA 7(a)(2) ...” Id. at 1420. Westlands found that, as a general rule, “[bjiological opinions are not binding on the Secretary, nor do they invariably require an EIS.” 850 F.Supp. at 1422 (emphasis added). Rather, a case-by-case analysis is required: A biological opinion is part of the ESA process originated by 16 U.S.C. 1536(a)(2), which requires federal agencies, with the assistance of the Secretary, to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species.” The federal agency undertaking such activity must consult the service having jurisdiction over the relevant endangered species. 16 U.S.C. 1536(a)(3). The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), are jointly responsible for administering the ESA. 50 C.F.R. 402.01(b) (1992). The consulting service then issues a biological opinion that details how the proposed action “affects the species or its critical habitat,” including the impact of incidental takings of the species. 16 U.S.C. 1536(b)(3)(A). “The agency is not required to adopt the alternatives suggested in the biological opinion; however, if the Secretary deviates from them, he does so subject to the risk that he has not satisfied the standard of Section 7(a)(2).” Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir.1988) (citation omitted), cert. denied, 493 U.S. 873, 110 S.Ct. 204, 107 L.Ed.2d 157 (1989). A Secretary can depart from the suggestions in a biological opinion, and so long as he or she takes “alternative, reasonably adequate steps to insure the continued existence of any endangered or threatened species, ” no ESA violation occurs. Id. at 1193 95;"
},
{
"docid": "15138622",
"title": "",
"text": "Reich, 56 F.3d 1465, 1467 (D.C.Cir.1995); Northwest Resource Info. Ctr. v. Nat’l Marine Fisheries Serv., 56 F.3d 1060, 1066 (9th Cir.1995); Franklin Sav. Ass’n v. Dir., Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir.1991); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir.1983); Cabinet Mountains Wilderness/Scotchman’s Peak Grizzly Bears v. Peterson, 685 F.2d 678, 685 (D.C.Cir.1982); Nat'l Mining Ass’n v. Chao, 160 F.Supp.2d 47, 56 (D.D.C.2001), aff'd in part and rev’d in part on other grounds by Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849 (D.C.Cir.2002) (\"The D.C. Circuit recently reaffirmed the principle of law that the APA provides a default standard of review where a statute does not otherwise provide a standard.”). . Rule 19 has changed since the Wichita decision was issued. Compare Wichita, 788 F.2d at 774 (laying out Rule as it existed), with Fed.R.Civ.P. 19. Nonetheless, the basic concept of the joinder rule remains unchanged, and thus the reasoning in the case is instructive. . Joinder of necessary parties is not feasible, as tribes cannot be compelled to waive sovereign immunity. See Wichita, 788 F.2d at 771. . Based on the plain language of the resolution, it would not have been unreasonable for the Board to conclude that the agreement was not ambiguous, in that it clearly stated that 1988 data was to govern all future funding. . Those tribes also did not object to CPN’s position. The IBIA appears to have given more weight to their lack of support than their lack of objection. The Court is not in a position to substitute its judgment for that of the agency’s. State Farm, 463 U.S. at 43, 103 S.Ct. 2856. The IBIA's interpretation of this evidence supports its decision regarding the relevant factor of parties’ performance, and therefore passes muster as a satisfactory explanation of its conclusion. See id."
},
{
"docid": "8737071",
"title": "",
"text": "absent Tribe is not a necessary party under Rule 19(a)), cert. denied, 520 U.S. 1209, 117 S.Ct. 1691, 137 L.Ed.2d 818 (1997); see also Southwest Center, 150 F.3d at 1155 (reversing district court’s determination that absent party was “necessary” and remanding without Rule 19(b) analysis). We reverse the district court’s dismissal of these actions for failure to join the tribes. IV Midwater appeals the grant of summary judgment on its Endangered Species Act and Regulatory Flexibility Act claims. We hold that the district court correctly granted summary judgment on these claims. When reviewing regulations promulgated by the Secretary of Commerce and challenged under the Magnuson Act, our “only function is to determine whether the Secretary ‘has considered the relevant factors and articulated a rational connection between the facts found and the choice made.’ ” Alliance Against IFQs v. Brown, 84 F.3d 343, 345 (9th Cir.1996), cert. denied, 520 U.S. 1185, 117 S.Ct. 1467, 137 L.Ed.2d 681 (1997) (quoting Washington Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir.1990)). “We determine only if the Secretary acted in an arbitrary and capricious manner in promulgating such regulations.” Id. The arbitrary and capricious standard is narrow, and we may not substitute our judgment for that of the agency. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). We must decide whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Id. A The Endangered Species Act requires federal agencies to “insure that any action authorized, funded or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species....” 16 U.S.C. § 1536(a)(2). The Fisheries Service has listed Snake River fall chinook as a threatened species. See 57 Fed.Reg. 14653 (1992). If the actions of a federal agency may affect a listed species, then the agency must consult with the Secretary of the Interior or a delegated agent. See 16 U.S.C. § 1536(a)(4); 50 C.F.R. §§ 402.14(a) and 402.01(b) (delegating salmon protection to the"
},
{
"docid": "8637926",
"title": "",
"text": "this subchapter or regulations promulgated thereunder, or mandamus to compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this subchapter or regulations promulgated hereunder (including immediate injunctive relief to reverse a declination finding under section 450f(a)(2) of this title or to compel the Secretary to award and fund an approved self-determination contract). . Northwest Resource Info. Center v. National Marine Fisheries Service, 56 F.3d 1060, 1066 (9th Cir.1995) (National Environmental Protection Act); Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir.1993) (Arizona-Idaho Conservation Act); Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir.1988), cert denied 493 U.S. 873, 110 S.Ct. 204, 107 L.Ed.2d 157 (1989) (Endangered Species Act); Franklin Sav. Ass’n v. Director, Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir.1991), cert denied 503 U.S. 937, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992) (FIRREA); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.1983) (Clean Water Act). . It is noteworthy that § 450m-l does not specifically authorize the court to remand back to the Secretary. . The parties assume that filing an action in federal district court necessarily forecloses an administrative hearing. That assumption may be unwarranted. The statute allows an appeal to be filed in a federal district court only \"in lieu of filing such appeal.” It is not clear whether the reference to \"appeal” means both a hearing and the appeal or only the appeal. If it refers only to the appeal, then a tribe conceivably first could obtain an administrative hearing with full discovery and then file its appeal in district court. However, that possible scenario is not presented in this case. Here, the Shoshone-Bannock Tribes opted not to have an administrative hearing, but to file immediately in federal district court. By doing so, the issue is whether they waived their right to discovery and a hearing in a federal district court. . These are apparently funds dedicated by Congress to particular purposes and not available for distribution. Plaintiffs Exhibit, p. 20. . These are fund needed"
},
{
"docid": "4609398",
"title": "",
"text": "service having jurisdiction over the relevant endangered species. 16 U.S.C. § 1536(a)(3). The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), are jointly responsible for administering the ESA. 50 C.F.R. § 402.01(b) (1992). The consulting service then issues a biological opinion that details how the proposed action “affects the species or its critical habitat,” including the impact of incidental takings of the species. 16 U.S.C. § 1536(b)(3)(A). “The agency is not required to adopt the alternatives suggested in the biological opinion; however, if the Secretary deviates from them, he does so subject to the risk that he has not satisfied the standard of Section 7(a)(2).” Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir.1988) (citation omitted), cert, denied, 493 U.S. 873,110 S.Ct. 204, 107 L.Ed.2d 157 (1989). A Secretary can depart from the suggestions in a biological opinion, and so long as he or she takes “alternative, reasonably adequate steps to insure the continued existence of any endangered or threatened species,” no ESA violation occurs. Id. at 1193-95; Pyramid Lake Paiute Tribe of Indiana v. Department of Navy, 898 F.2d 1410, 1418 (9th Cir.1990) (“a non-interior agency is given discretion to decide whether to implement conservation recommendations put forth by the FWS”). The Joint Regulations state: The Service may provide with the biological opinion a statement containing discretionary conservation recommendations. Conservation recommendations are advisory and are not intended to carry any binding legal force. 50 C.F.R. § 402.14© (1992). 50 C.F.R. § 402.15(a) states: (a) Following the issuance of a biological opinion, the Federal agency shall determine whether and in what manner to proceed with the action in light of its section 7 obligations and the Service’s biological opinion. Courts have attempted to define the “point of commitment,” at which the filing of an EIS is required, during the planning process of a federal project. See Sierra Club v. Peterson, 717 F.2d 1409,1414 (D.C.Cir.1983). “An EIS must be prepared before any irreversible and irretrievable commitment of resources.” Conner v. Burford, 848 F.2d 1441, 1446 (9th Cir.1988), cert, denied 489 U.S. 1012, 109"
},
{
"docid": "2540107",
"title": "",
"text": "Federal assistance, and (c) there is a violation or violations of laws or regulations, or an unsafe or unsound practice or condition which is likely to cause insolvency or substantial dissipation of assets or earnings, or is likely to weaken the condition of the Association or otherwise seriously prejudice the interests of its depositors .... (Dk. 1, Complaint, Ex. 2F). The director appointed “not for the purpose of liquidation” the RTC as conservator for Franklin. Id. In March of 1990, Franklin filed an action pursuant to 12 U.S.C. § 1464(d)(2)(E) seeking the removal of the conservator. After a lengthy bench trial, the district court concluded that the director’s stated grounds for appointment of the conservator were without a factual basis and that the director acted arbitrarily and capriciously in appointing the conservator. Franklin Sav. v. Office of Thrift Supervision, 742 F.Supp. 1089, 1126 (D.Kan.1990). On appeal, the Tenth Circuit reversed and vacated the district court’s decision and remanded the case with instructions to dismiss the action. Franklin Sav. v. Director, Office of Thrift Super., 934 F.2d 1127, 1151 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992). The Tenth Circuit first held that judicial review of the director’s decision to appoint a conservator is limited to the information or administrative record before the director when the decision to appoint was made. 934 F.2d at 1140. The Tenth Circuit offered several reasons for this limited scope of review. FIRREA authorizes the director to appoint a conservator or receiver if “in the opinion of the Director, a ground for the appointment ... exists.” 12 U.S.C. § 1464(d)(2)(E). To assure a quick response to the danger of an association’s swift loss of liquidity, FIRREA gives the director the power to act promptly in appointing a conservator once the director believes that a statutory ground for appointment exists. 934 F.2d at 1137. Generally, when Congress fails to articulate a standard and procedure for judicial review, the courts limit their review to the administrative record. Id. The language of § 1464(d)(2)(E) does not mandate de novo review with a full"
},
{
"docid": "8637925",
"title": "",
"text": "interest, and costs of suit, including attorney fees, remain pending; and 3. The Fourth, Sixth, Ninth and Tenth Claims will be set for an evidentiary hearing. . The Acting IHS Portland Area Director is now • Joyce Reyes. . At this point, the Shoshone-Bannoek Tribes are not challenging the tribal share of the Service Unit, but rather are challenging only the tribal share of the Area and Headquarters administrative functions. . 25 U.S.C. § 450m-l(a) provides as follows: The United States district courts shall have original jurisdiction over any civil action or claim against the appropriate Secretary arising under this subchapter and, subject to the provisions of subsection (d) of this section and concurrent with the United States court of Claims, over any civil action or claim against the Secretary for money damages arising under contracts authorized by this subchapter. In an action brought under this paragraph, the district courts may order appropriate relief including money damages, injunctive relief against any action by an officer of the United States or any agency thereof contrary to this subchapter or regulations promulgated thereunder, or mandamus to compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this subchapter or regulations promulgated hereunder (including immediate injunctive relief to reverse a declination finding under section 450f(a)(2) of this title or to compel the Secretary to award and fund an approved self-determination contract). . Northwest Resource Info. Center v. National Marine Fisheries Service, 56 F.3d 1060, 1066 (9th Cir.1995) (National Environmental Protection Act); Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir.1993) (Arizona-Idaho Conservation Act); Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir.1988), cert denied 493 U.S. 873, 110 S.Ct. 204, 107 L.Ed.2d 157 (1989) (Endangered Species Act); Franklin Sav. Ass’n v. Director, Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir.1991), cert denied 503 U.S. 937, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992) (FIRREA); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.1983) (Clean Water Act). . It is noteworthy that § 450m-l does not"
},
{
"docid": "12979584",
"title": "",
"text": "to deny the specific request for relief. The order does not extinguish or discharge Franklin’s controverted debt of costs, nor does the order prevent the Director from arguing the bill of costs may be refiled within thirty days‘of the termination of the stay, under 11 U.S.C. § 108(e). The order of the district court so construed is therefore AFFIRMED. . See, e.g., Franklin Sav. Ass’n v. Director, Office of Thrift Supervision, 742 F.Supp. 1089 (D.Kan.1990), rev'd, 934 F.2d 1127 (10th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992); Franklin Sav. Ass'n v. Ryan, 922 F.2d 209 (4th Cir.1991); Franklin Sav. Ass’n v. Office of Thrift Supervision, 821 F.Supp. 1414 (D.Kan.1993), appeal filed, No. 93-3180 (10th Cir. Apr. 14, 1993). . Section 362(a) states a properly filed petition operates as a stay, applicable to all entities, of— (1) the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor ... to recover a claim against the debtor that arose before the commencement of the case under this title. . Because the Director's claim for costs is void, we lack jurisdiction to address the merits of this claim. See Ellis, 894 F.2d at 373. The parties have not explained the source of further jurisdiction for this appeal. Because the district court was not exercising appellate review of a bankruptcy court decision, our common source of jurisdiction, 28 U.S.C. § 158(d), does not apply. We have recognized, however, that a court of appeals has jurisdiction under 28 U.S.C. § 1291 to review final district court orders when the district court acts other than in its appellate function. See In re Atencio, 913 F.2d 814, 815 (10th Cir.1990). As a general rule, orders granting or denying relief from an automatic stay are appealable final orders. Cf. Eddleman v. United States Dep’t of Labor, 923 F.2d 782, 784 (10th Cir.1991) (order granting stay sufficiently final to allow § 158(d) jurisdiction); 2 Collier on Bankruptcy ¶ 362.13 (Lawrence P. King 15th ed. 1994). . Bankruptcy Code § 362(d) allows a court to grant relief from"
},
{
"docid": "23280580",
"title": "",
"text": "opinion as to its merits. See Vaughner v. Pulito, 804 F.2d 873, 877 n. 2 (5th Cir.1986); Frank C. Bailey Enterprises, Inc. v. Cargill, Inc., 582 F.2d 333, 334 (5th Cir.1978) (appellate court, in reviewing summary judgment order, can consider only those matters presented to the district court). . These regulations were promulgated as an informal rulemaking under the Endangered Species Act, which does not prescribe compliance with the formal procedures required by 5 U.S.C. § 556. Consequently, substantial evidence re view under 5 U.S.C. § 706(2)(E) is not appropriate. F.C.C. v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 803-04, 98 S.Ct. 2096, 2116-17, 56 L.Ed.2d 697 (1978). .Concerned Shrimpers urge this court to undertake de novo review of the agency decision, including in our review consideration of new, extra-record materials never submitted to the agency or, for that matter, to the district court. We note, however, that both the Concerned Shrimpers' proposed standard of review and their attempt to reopen the administrative record in this court are improper. Under well-established principles of administrative law, de novo review is not the standard. The courts are not empowered to substitute their judgment for that of the agency. Motor Vehicles Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983). Nor are the courts permitted to consider evidence outside the administrative record. Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904-05 (5th Cir.1983). Agency action is to be upheld, if at all, on the basis of the record before the agency at the time it made its decision. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 51, 103 S.Ct. at 2870-71. . City of Houston v. FAA, 679 F.2d 1184, 1190 (5th Cir.1982); American Petroleum Institute v. EPA, 661 F.2d 340, 349 (5th Cir. Unit A Nov. 1981). See Hondros v. United States Civil Service Comm 'n, 720 F.2d 278, 295 (3d Cir.1983) (action will not be deemed arbitrary, capricious, or"
},
{
"docid": "4609397",
"title": "",
"text": "of existing Bureau operational standards or procedures for the CVP. Taken together, those events resulted in a major federal action having a significant effect on the human environment, an EIS was required. Upper Snake River, 921 F.2d at 235, is distinguishable. There the Bureau was found to have revised operating procedures or standards to alter the status quo. Here the taking of water for non-agricultural purposes is alleged to have changed the operational requirements of the CVP, imposed new standards for reverse flow in the Western Delta, carryover storage in the Shasta reservoir, and caused closure of the Delta cross-channel. Such actions and the environmental effects alleged are not routine managerial changes. A biological opinion is part of the ESA process originated by 16 U.S.C. § 1536(a)(2), which requires federal agencies, with the assistance of the Secretary, to “insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species.” The federal agency undertaking such activity must consult the service having jurisdiction over the relevant endangered species. 16 U.S.C. § 1536(a)(3). The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), are jointly responsible for administering the ESA. 50 C.F.R. § 402.01(b) (1992). The consulting service then issues a biological opinion that details how the proposed action “affects the species or its critical habitat,” including the impact of incidental takings of the species. 16 U.S.C. § 1536(b)(3)(A). “The agency is not required to adopt the alternatives suggested in the biological opinion; however, if the Secretary deviates from them, he does so subject to the risk that he has not satisfied the standard of Section 7(a)(2).” Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir.1988) (citation omitted), cert, denied, 493 U.S. 873,110 S.Ct. 204, 107 L.Ed.2d 157 (1989). A Secretary can depart from the suggestions in a biological opinion, and so long as he or she takes “alternative, reasonably adequate steps to insure the continued existence of any endangered or threatened species,” no ESA violation occurs. Id. at"
},
{
"docid": "10955954",
"title": "",
"text": "Defendants have violated their substantive duty to avoid jeopardy by failing to comply with the requirements of their biological opinions and by failing to implement adequate protective measures. See CMC’s Memorandum in Support at 39. In the November Opinion, the Federal Defendants fully analyzed the long-term and short-term impacts of the shrimping fishery on sea turtles. The Federal Defendants identified causes of the increased sea turtle standings and suggested methods to avoid jeopardy to the turtles. While a biological opinion is not binding on the agency, an agency choosing to take action in the face of a critical biological opinion proceeds at the risk of a jeopardy finding. See Defenders of Wildlife, Friends of Animals & Their Env’t. v. Hodel, 851 F.2d 1035, 1037 (8th Cir.1988); National Wildlife Fed’n. v. Coleman, 529 F.2d 359, 371 (5th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976); Village of False Pass v. Watt, 565 F.Supp. 1123, 1160-61 (D.Alaska 1983), aff'd., 733 F.2d 605 (9th Cir.1984). However, as the CMC acknowledges, an agency generally can avoid a finding that it has placed an endangered or threatened species in jeopardy by complying with the reasonable and prudent alternatives spelled out in a biological opinion, unless the decision to implement the biological opinion was arbitrary or capricious. Pyramid Lake Paiute Tribe of Indians v. United States Dep’t of the Navy, 898 F.2d 1410, 1415 (9th Cir.1990); Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir.1988), cert. denied, 493 U.S. 873, 110 S.Ct. 204, 107 L.Ed.2d 157 (1989). The November Opinion concluded that if sea turtle mortalities continued at the 1994 rate, the long-term operation of the shrimp fishery in the southeastern United States was likely to jeopardize the continued existence of the Kemp’s ridley turtles and could prevent the recovery of loggerhead turtles. AR II.E.165 at 14. The Opinion set out several requirements as part of its reasonable and prudent alternative to prevent jeopardy to the turtles. The Federal Defendants contend they have complied with the terms and conditions of the November Opinion and its reasonable and prudent"
},
{
"docid": "12979583",
"title": "",
"text": "We review the district court’s decision whether to lift the stay under an abuse of discretion standard, Pursifull v. Eakin, 814 F.2d 1501, 1504 (10th Cir.1987), and find no abuse here. The Director can claim no honest ignorance of the bankruptcy stay, nor has the Director offered any reason why the stay should be lifted “for cause.” 11 U.S.C. § 362(d)(1). The Director should not be rewarded for failing to seek relief from the stay at any time after the filing of the petition and then failing to request its bill of costs within the thirty-day period established by the District of Kansas procedure for taxation for costs. See D.Kan.R. 219(a). The district court was within its discretion to deny the Director’s request for relief from the stay. The Director additionally complains the district court’s language implies the Director “waived” its right to all future relief in later resubmitting its bill of costs. Although the district court may have improvidently used the term “waived,” we construe the district court’s order as merely using its discretion to deny the specific request for relief. The order does not extinguish or discharge Franklin’s controverted debt of costs, nor does the order prevent the Director from arguing the bill of costs may be refiled within thirty days‘of the termination of the stay, under 11 U.S.C. § 108(e). The order of the district court so construed is therefore AFFIRMED. . See, e.g., Franklin Sav. Ass’n v. Director, Office of Thrift Supervision, 742 F.Supp. 1089 (D.Kan.1990), rev'd, 934 F.2d 1127 (10th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1475, 117 L.Ed.2d 619 (1992); Franklin Sav. Ass'n v. Ryan, 922 F.2d 209 (4th Cir.1991); Franklin Sav. Ass’n v. Office of Thrift Supervision, 821 F.Supp. 1414 (D.Kan.1993), appeal filed, No. 93-3180 (10th Cir. Apr. 14, 1993). . Section 362(a) states a properly filed petition operates as a stay, applicable to all entities, of— (1) the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor ... to recover a claim against the debtor that arose before the commencement of the case"
}
] |
435534 | 147, 158 n. 3 (2d Cir.2001). “Pattern-or-practice disparate treatment claims focus on allegations of widespread acts of intentional discrimination against individuals. To succeed on a pattern-or-practice claim, plaintiffs must prove more than sporadic acts of discrimination; rather, they must establish that intentional discrimination was the defendant’s ‘standard operating procedure.’ ” Id. at 158 (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). Although Title VII initially envisioned that pattern or practice claims would be made by the government, 42 U.S.C. § 2000e-6; International Brotherhood of Teamsters, 431 U.S. at 328 n. 1, 97 S.Ct. 1843, courts have unequivocally granted private individuals the right to vindicate those claims, REDACTED see also Tucker v. Gonzales, No. 03 Civ. 3106, 2005 WL 2385844, at *3 (S.D.N.Y. Sept. 27, 2005); Melani v. Board of Higher Education, 561 F.Supp. 769, 773 n. 5 (S.D.N.Y.1983). However, there is a consensus among courts in this district that pattern or practice claims may not be brought by a single individual, but rather must be pursued by a class. Houston v. Manheim-New York, No. 09 Civ. 4544, 2010 WL 6121688, at *5-6 (S.D.N.Y. July 7, 2010) (“Pattern or practice discrimination claims ... must be made as a class action.”), report and recommendation adopted, 2011 WL 924199 (S.D.N.Y. March 16, 2011); United States v. City of New York, 631 F.Supp.2d 419, | [
{
"docid": "22377293",
"title": "",
"text": "(1983); Texas Dept. of Community Affairs v. Burdine, 450 U. S., at 253. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff regarding the particular employment decision “remains at all times with the plaintiff,” ibid., and in the final analysis the trier of fact “must decide which party’s explanation of the employer’s motivation it believes.” United States Postal Service Board of Governors v. Aikens, 460 U. S., at 716. In Franks v. Bowman Transportation Co, 424 U. S. 747 (1976), the plaintiff, on behalf of himself and all others similarly situated, alleged that the employer had engaged in a pervasive pattern of racial discrimination in various company policies, including the hiring, transfer, and discharge of employees. In that class action we held that demonstrating the existence of a discriminatory pattern or practice established a presumption that the individual class members had been discriminated against on account of race. Id., at 772. Proving isolated or sporadic discriminatory acts by the employer is insufficient to establish a prima facie case of a pattern or practice of discrimination; rather it must be established by a preponderance of the evidence that “racial discrimination was the company’s standard operating procedure — the regular rather than the unusual practice.” Teamsters v. United States, 431 U. S. 324, 336 (1977) (footnote omitted). While a finding of a pattern or practice of discrimination itself justifies an award of prospective relief to the class, additional proceedings are ordinarily required to determine the scope of individual relief for the members of the class. Id., at 361. The crucial difference between an individual’s claim of discrimination and a class action alleging a general pattern or practice of discrimination is manifest. The inquiry regarding an individual’s claim is the reason for a particular employment decision, while “at the liability stage of a pattern- or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory deci-sionmaking.” Id., at 360, n. 46. See generally Furnco Construction Corp. v. Waters, 438 U. S. 567, 575, n. 7 (1978). This distinction"
}
] | [
{
"docid": "15252160",
"title": "",
"text": "VII claim” through a pattern or practice claim and, therefore, the method of proof set forth in International Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), is applicable. (Appellees’ Br. at 15) (emphasis in original). We agree with Circuit City that individuals do not have a private, non-class cause of action for pattern or practice discrimination under § 1981 or Title VII. We further agree, with the exception of plaintiffs Lowery and Peterson, that the Plaintiffs failed to offer either direct evidence of discrimination or circumstantial evidence of discrimination sufficient to establish claims of disparate treatment under the McDonnell Douglas method of proof. Section 707 of Title VII, 42 U.S.C. § 2000e-6, allows the federal government, either through the EEOC or through the Attorney General, to bring a civil aetion directly against an employer charging systematic discrimination against a protected group. In these cases, the government has to demonstrate that there exists “a pattern or practice of resistance to the full enjoyment of any of the rights secured by [Title VII].... ” 42 U.S.C. § 2000e-6(a). The government’s burden in a pattern or practice action is to “prove more than the mere occurrence of isolated or accidental or sporadic discriminatory acts. It ha[s] to establish by a preponderance of the evidence that raeial discrimination [is] the company’s standard operating procedure — the regular rather than unusual practice.” Teamsters, 431 U.S. at 335-36, 97 S.Ct. 1843 (footnote and internal quotation marks omitted). At this initial “liability” stage, the government is not required to prove that any particular employee was a victim of the pattern or practice; it need only establish a prima facie case that such a policy existed. See id. at 360, 97 S.Ct. 1843. Once established, the burden of proof then shifts to the employer to demonstrate that the government’s showing of a pattern or practice of discrimination is either inaccurate or insignificant. See id. If the employer fails to rebut the government’s prima facie case, the resulting finding of a discriminatory pattern or practice gives rise to an inference that"
},
{
"docid": "19309978",
"title": "",
"text": "the protected group.” Robinson, 267 F.3d at 158 (citing Teamsters, 431 U.S. 324, 360, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). Robinson noted that if a plaintiff successfully carried its burden of persuading the trier of fact that the defendant engaged in a pattern or practice of intentional discrimination, the court could “proceed to fashion class-wide injunctive relief.” Id. at 159 (citing Teamsters, 431 U.S. at 361, 97 S.Ct. 1843). The initial classwide phases of a disparate impact claim similarly focus on the defendant’s employment actions vis-a-vis the protected group as a whole. Disparate impact plaintiffs must “establish by a preponderance of the evidence that the employer ‘uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.’ ” Id. at 160 (quoting 42 U.S.C. § 2000e-2(k)(l)(A)(i)). “As with the liability phase of a pattern-or-practice disparate treatment claim, statistical proof almost always occupies center stage in a prima facie showing of a disparate impact claim.” Id. The employer’s defenses focus on the sufficiency of the plaintiffs’ statistics and whether the challenged employment practices are job-related and consistent with business necessity. Id. “Should the plaintiffs succeed in establishing a Title VII disparate impact violation, the court may order prospective class-wide injunctive relief.” Robinson, 267 F.3d at 161. Individual issues arise in disparate impact and pattern-or-practice disparate treatment cases only if the class establishes the employer’s liability and the litigation proceeds to the remedial phase. In pattern-or-praetiee disparate treatment cases, Robinson observed that the court considers questions of individual relief such as backpay, frontpay, and compensatory damages in a “remedial phase,” id. at 159 (citing Teamsters, 431 U.S. at 362, 97 S.Ct. 1843), only after the trier of fact finds that intentional discrimination against the protected group was the defendant’s “standard operating procedure,” id. at 158 (quoting Teamsters, 431 U.S. at 336, 97 S.Ct. 1843). Robinson explained that “the remedial phase also implicates questions of liability, albeit liability to each individual class member rather than to the class as a whole.” Id. at 158 n. 4. “[A] class member at the remedial"
},
{
"docid": "7757717",
"title": "",
"text": "within the workplace.” (Gov. Ex. 130: Memorandum from Ann Williams, Director of EEO dated Oct. 29, 1999, at 7; Tr. 466.) Wilbur Chapman, the DOT Commissioner, reviewed the EEO investigation and adopted the finding that “assignment of a female supervisor has obviously caused resentment.” (Gov. Ex. 129: Determination After Report and Recommendation from Wilbur Chapman, Commissioner dated Oct. 14,1999, at 1-2.) CONCLUSIONS OF LAW I. The Pattern or Practice of Disparate Treatment Claim a. Legal Standard Title VII of the Civil Rights Act of 1964, § 703(a), 42 U.S.C. § 2000e et seq., prohibits various forms of employment discrimination on the basis of race, color, religion, sex, or national origin. Title VII prohibits both intentional discrimination-known as disparate treatment-and unintentional discrimination practices which have a disproportionately adverse effect on a protected class-known as disparate impact. See Ricci v. DeStefano, — U.S.-, 129 S.Ct. 2658, 2672, 174 L.Ed.2d 490 (2009). This is a disparate treatment case for sex discrimination in the City’s hiring practices. Disparate treatment cases are “the most easily understood type of discrimination” because the “employer simply treats some people less favorably” because they possess a protected trait. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Accordingly, it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Unlike disparate impact claims, disparate treatment claims require proof of an employer’s discriminatory motive, which “can in some situations be inferred from the mere fact of differences in treatment.” Teamsters, 431 U.S. at 335, 97 S.Ct. 1843 (citing Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). In a “pattern-or-practice” disparate treatment case, proof of discrimination focuses on “widespread acts of intentional discrimination against individuals.” Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir.2001). “To succeed ... plaintiffs"
},
{
"docid": "23271658",
"title": "",
"text": "“occurred” after August 2, 2000, may give rise to liability. I. The Pattem-or-Practice Method of Proof As an initial matter, we address the question whether the method of proof de scribed in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), and known as the “Teamsters ” or “pattern-or-practice” method, was available to the non-class private plaintiffs in this case. We conclude that it was not and that the judgment as to pattern or practice must for this reason be reversed. We emphasize, however, that evidence that the Port Authority engaged in a pattern or practice of discrimination — in the ordinary sense of those words, rather than in the technical sense describing a theory of liability for discrimination — remains relevant in assessing whether the plaintiffs proved discrimination using the individual disparate treatment and disparate impact methods of proof. The phrase “pattern or practice” appears only once in Title VII — in a section that authorizes the government to pursue injunctive relief against an employer “engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by” the statute. 42 U.S.C. § 2000e-6. Notwithstanding the Supreme Court’s recognition in Teamsters that this language “was not intended as a term of art, and the words reflect only their usual meaning,” Teamsters, 431 U.S. at 336 n. 16, 97 S.Ct. 1843, the phrase is often used in a technical sense to refer either to this unique form of liability available in government actions under § 2000e-6, see, e.g., EEOC v. Shell Oil Co., 466 U.S. 54, 67-68 n. 19, 70, 80, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984), or to the burden-shifting framework set out in Teamsters and available both to the government in § 2000e-6 litigation and to class-action plaintiffs in private actions alleging discrimination, see, e.g., Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2552 n. 7, 180 L.Ed.2d 374 (2011). We begin with § 2000e-6. The building blocks of liability pursuant to this provision — which provides for prospective injunctive"
},
{
"docid": "19194640",
"title": "",
"text": "its holding would apply to pattern or practice claims. See 536 U.S. at 113-14, 115 n. 9, 122 S.Ct. 2061. The court must therefore consider whether Count Three’s characterization of defendant’s practices as “systematic! ]” and a “continuing violation of discriminatory policies or practices that are related to bthe [sic] circumstances of her discharge” suffice to allege a pattern or practice claim. Am. Compl. ¶¶ 34, 39. The Supreme Court has explained the proof necessary to establish a pattern or practice claim: Proving isolated or sporadic discriminatory acts by the employer is insufficient to establish a prima facie case of a pattern or practice of discrimination; rather it must be established by a preponderance of the evidence that ‘[age] discrimination was the company’s standard operating procedure — the regular rather than the unusual practice.’ ... The crucial difference between an individual’s claim of discrimination and a class action alleging a general pattern of practice of discrimination is manifest. The inquiry regarding an individual’s claim is the reason for a particular employment decision, while ‘at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decision making.’ Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 875-76, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984) (quoting Teamsters v. United States, 431 U.S. 324, 336, 360 n. 46, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). As the case law makes clear, the nature of proof that a plaintiff must offer in a pattern and practice claim differs from that in an individual claim. See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 158 & n. 5 (2d Cir.2001). Typically, a plaintiff bringing a pattern or practice claim marshals evidence of a concrete policy and/or statistical evidence in support of the claim, along with anecdotal evidence to support that claim. Id. at 158. For example, in Teamsters, the court upheld a pattern and practice claim where plaintiffs offered compelling statistical evidence, buttressed by oral testimony of forty specific instances of discrimination. 431 U.S. at 337-43, 97 S.Ct. 1843. In"
},
{
"docid": "19309977",
"title": "",
"text": "the dispute. Predominance and superiority are self-evident. But with respect to each class member’s individualized claim for money, that is not so — -which is precisely why (b)(3) requires the judge to make findings about predominance and superiority before allowing the class. Id. at 2558-59. In light of the structure of Rule 23(b), the Wal-Mart Court concluded that it was “clear that individualized monetary claims belong in Rule 23(b)(3).” Id. Issue certification of bifurcated liability-phase questions is fully consistent with WalMart ’s careful attention to the distinct procedural protections attending (b)(2) and (b)(3) classes. Robinson observed that a plaintiff class seeking to establish a defendant’s liability for discrimination under either a pattern-or-practice disparate treatment theory or a disparate impact theory must introduce evidence of discrimination against the protected group as a whole. For pattern-or-practice disparate treatment claims, International Brotherhood of Teamsters v. United States {“Teamsters”) requires district courts to conduct an initial liability phase to determine whether the plaintiffs have “establish[ed] a prima facie case of a policy, pattern, or practice of intentional discrimination against the protected group.” Robinson, 267 F.3d at 158 (citing Teamsters, 431 U.S. 324, 360, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). Robinson noted that if a plaintiff successfully carried its burden of persuading the trier of fact that the defendant engaged in a pattern or practice of intentional discrimination, the court could “proceed to fashion class-wide injunctive relief.” Id. at 159 (citing Teamsters, 431 U.S. at 361, 97 S.Ct. 1843). The initial classwide phases of a disparate impact claim similarly focus on the defendant’s employment actions vis-a-vis the protected group as a whole. Disparate impact plaintiffs must “establish by a preponderance of the evidence that the employer ‘uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.’ ” Id. at 160 (quoting 42 U.S.C. § 2000e-2(k)(l)(A)(i)). “As with the liability phase of a pattern-or-practice disparate treatment claim, statistical proof almost always occupies center stage in a prima facie showing of a disparate impact claim.” Id. The employer’s defenses focus on the sufficiency of the"
},
{
"docid": "22125594",
"title": "",
"text": "banc). The 1991 Act enhanced Title VU’s remedial scheme for disparate treatment claims. In addition to back pay and front pay, it authorized the recovery of compensatory and punitive damages in disparate treatment disputes, see 42 U.S.C. § 1981a(a)(l), and afforded a jury trial where these additional remedies are sought, see 42 U.S.C. § 1981a(e). The 1991 Act did not alter the remedial structure for disparate impact claims. B. Proving Title VII Claims 1. Pattern or Practice Disparate Treatment Claims Pattern-or-practice disparate treatment claims focus on allegations of widespread acts of intentional discrimination against individuals. To succeed on a pattern-or-practice claim, plaintiffs must prove more than sporadic acts of discrimination; rather, they must establish that intentional discrimination was the defendant’s “standard operating procedure.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Generally, a pattern-or-practice suit is divided into two phases: liability and remedial. See id. at 360-62, 97 S.Ct. 1843. At the liability stage, the plaintiffs must produce sufficient evidence to establish a prima facie case of a policy, pattern, or practice of intentional discrimination against the protected group. See id. at 360, 97 S.Ct. 1843. “Plaintiffs have typically depended upon two kinds of circumstantial evidence to establish the existence of a policy, pattern, or practice of intentional discrimination: (1) statistical evidence aimed at establishing the defendant’s past treatment of the protected group, and (2) testimony from protected class members detailing specific instances of discrimination.” 1 Arthur Larson et al., Employment Discrimination § 9.03[1], at 9-18 (2d ed.2001); see Mozee v. Am. Commercial Marine Serv. Co., 940 F.2d 1036, 1051 (7th Cir.1991). Statistics alone can make out a prima facie case of discrimination if the statistics reveal “a gross disparity in [the] treatment of workers based on race.” Lopez v. Laborers Int’l Union, Local No. 18, 987 F.2d 1210, 1214 (5th Cir.1993) (internal quotation marks omitted); see also Ardrey v. United Parcel Serv., 798 F.2d 679, 684 (4th Cir.1986) (“Since strong statistical evidence, without anecdotal evidence, may in some cases form a prima facie case, a defendant’s successful rebuttal of"
},
{
"docid": "7757718",
"title": "",
"text": "the “employer simply treats some people less favorably” because they possess a protected trait. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Accordingly, it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Unlike disparate impact claims, disparate treatment claims require proof of an employer’s discriminatory motive, which “can in some situations be inferred from the mere fact of differences in treatment.” Teamsters, 431 U.S. at 335, 97 S.Ct. 1843 (citing Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). In a “pattern-or-practice” disparate treatment case, proof of discrimination focuses on “widespread acts of intentional discrimination against individuals.” Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 158 (2d Cir.2001). “To succeed ... plaintiffs must prove more than sporadic acts of discrimination; rather, they must establish that intentional discrimination was the defendant’s standard operating procedure.” Robinson, 267 F.3d at 158 (quoting Teamsters, 431 U.S. at 336, 97 S.Ct. 1843) (emphasis added). Accordingly, “the initial focus in a pattern-or-practice ease is not on individual employment decisions” but on the existence of multiple related acts of discrimination. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1106 (10th Cir.2001) (internal citations and quotation marks omitted); see also Robinson, 267 F.3d at 158 n. 5 (distinguishing pattern-or-practice disparate treatment claims from individual disparate treatment claims proceeding under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). The plaintiff has the “initial burden ... to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers.” Teamsters, 431 U.S. at 360, 97 S.Ct. 1843. To establish liability, “the Government is not required to offer evidence that each person for whom it will ultimately seek"
},
{
"docid": "8362886",
"title": "",
"text": "class-wide sex (as other) discrimination is alleged is the existence of an identifiable employment pattern, practice or policy that demonstrably affects all members of a class in substantially, if not completely, comparable ways.” Id. In fact, the inquiry into commonality keys on the pattern and practice element shared by both substantive theories. 628 F.2d at 274. Accordingly, a court must keep in mind how the pattern and practice allegations function under the respective Title VII theories. Class actions pursued under a disparate treatment theory rely on allegations and proof that discrimination in the defendant company was its “standard operating procedure—the regular rather than the unusual practice.” International Broth, of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52 L.Ed.2d 396 (1977). The class must show “more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts.” Id.; see Pitre v. Western Elec. Co., Inc., 843 F.2d 1262, 1267 (10th Cir.1988). Statistical evidence generally plays a major role in proving a pattern and practice. Wagner v. Taylor, 836 F.2d 578, 592 (D.C.Cir.1987). Statistics, however, are not required and do not preclude evidence of individual discriminatory acts. See Pitre, 843 F.2d at 1267; Wagner, 836 F.2d at 592. The class representatives often offer both kinds, of evidence to prove their class disparate treatment claims. Wagner, 836 F.2d at 592. Class actions pursued under a disparate impact theory have a different focus. Unlike disparate treatment, the disparate impact theory does not require the plaintiff to prove discriminatory motive or intent. International Broth, of Teamsters v. United States, 431 U.S. 324, 336 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977). This theory addresses those “employment practices [and policies] that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Id. “[T]he necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” Watson v. Fort Worth Bank and Trust, 487"
},
{
"docid": "7397233",
"title": "",
"text": "as individual claims. (Def. Reply Memo, at 3-6). The Second Circuit is plainly willing to apply the federal substantive law of arbitrability to a variety of claims that fall under the FAA. In this case, the plaintiff has alleged that the defendants violated Title VII by engaging “in an intentional, company-wide, and systematic policy, pattern, and/or practice of discrimination against its female Associates, Vice Presidents, and Managing Directors.” (Compl., ¶ 138). “Disparate treatment claims under Title VII generally are of two types: (1) individual disparate treatment claims ... and (2) pattern-or-practice disparate treatment claims that center on group-wide allegations of intentional discrimination.” Robinson v. Metro-North Commuter Railroad Co., 267 F.3d 147, 158 n. 3 (2d Cir.2001). “Pattern-or-practice disparate treatment claims focus on allegations of widespread acts of intentional discrimination against individuals. To succeed on a pattern-or-practice claim, plaintiffs must prove more than sporadic acts of discrimination; rather, they must establish that intentional discrimination was the defendant’s ‘standard operating procedure.’ ” Id. at 158 (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). Although Title VII initially envisioned that pattern or practice claims would be made by the government, 42 U.S.C. § 2000e-6; International Brotherhood of Teamsters, 431 U.S. at 328 n. 1, 97 S.Ct. 1843, courts have unequivocally granted private individuals the right to vindicate those claims, Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 n. 9, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984); see also Tucker v. Gonzales, No. 03 Civ. 3106, 2005 WL 2385844, at *3 (S.D.N.Y. Sept. 27, 2005); Melani v. Board of Higher Education, 561 F.Supp. 769, 773 n. 5 (S.D.N.Y.1983). However, there is a consensus among courts in this district that pattern or practice claims may not be brought by a single individual, but rather must be pursued by a class. Houston v. Manheim-New York, No. 09 Civ. 4544, 2010 WL 6121688, at *5-6 (S.D.N.Y. July 7, 2010) (“Pattern or practice discrimination claims ... must be made as a class action.”), report and recommendation adopted, 2011 WL 924199 (S.D.N.Y. March 16, 2011);"
},
{
"docid": "7414156",
"title": "",
"text": "Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). “ ‘Proof of discriminatory motive ... is not required under [the] disparate-impact theory.’ ” Id. A. Class Members’ Disparate Treatment Claim Disparate treatment claims brought under the ADEA may involve “an isolated incident of discrimination against a single individual, or ... allegations of a ‘pattern or practice’ of discrimination affecting an entire class of individuals.” Palmer v. Shultz, 815 F.2d 84, 90 (D.C.Cir.1987). In International Brotherhood of Teamsters v. United States, 431 U.S. 324, 360-62, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), the Supreme Court created a framework for litigating pattern or practice claims. Pattern or practice cases proceed in two phases. In the initial, or “liability,” phase of a pattern or practice lawsuit, the analysis focuses on whether unlawful discrimination has been the employer’s regular or “systemwide” pattern or practice. Id. at 336, 97 S.Ct. 1843. In order to make out a prima facie case, the plaintiffs must prove “more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts.” Id. They must establish, by a preponderance of the evidence, that discrimination “was the company’s standard operating procedure! — ]the regular rather than the unusual practice.” Id. In this phase, the plaintiffs need not show each individual member of the class “was a victim of the employer’s discriminatory policy,” id. at 360, 97 S.Ct. 1843, since “proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy,” id. at 362, 97 S.Ct. 1843 (explaining it is presumed that as a member of the class, each plaintiff has been the victim of the discriminatory conduct). Statistical evidence may suffice to establish a prima facie case if the disparities in treatment are significant. See, e.g., Wagner v. Taylor, 836 F.2d 578, 592 (D.C.Cir.1987); Ledoux v. District of Columbia, 820 F.2d 1293, 1303 (D.C.Cir. 1987). In their amended complaint, the Aliotta plaintiffs alleged a persistent pattern or practice of discrimination spanning almost a decade. See"
},
{
"docid": "7397234",
"title": "",
"text": "97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). Although Title VII initially envisioned that pattern or practice claims would be made by the government, 42 U.S.C. § 2000e-6; International Brotherhood of Teamsters, 431 U.S. at 328 n. 1, 97 S.Ct. 1843, courts have unequivocally granted private individuals the right to vindicate those claims, Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 n. 9, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984); see also Tucker v. Gonzales, No. 03 Civ. 3106, 2005 WL 2385844, at *3 (S.D.N.Y. Sept. 27, 2005); Melani v. Board of Higher Education, 561 F.Supp. 769, 773 n. 5 (S.D.N.Y.1983). However, there is a consensus among courts in this district that pattern or practice claims may not be brought by a single individual, but rather must be pursued by a class. Houston v. Manheim-New York, No. 09 Civ. 4544, 2010 WL 6121688, at *5-6 (S.D.N.Y. July 7, 2010) (“Pattern or practice discrimination claims ... must be made as a class action.”), report and recommendation adopted, 2011 WL 924199 (S.D.N.Y. March 16, 2011); United States v. City of New York, 631 F.Supp.2d 419, 427 (S.D.N.Y.2009) (“[T]his Court holds that individuals cannot maintain a private, non-class, pattern-or-practice claim.”); Marrow v. Potter, No. 06 Civ. 13681, 2010 WL 6334856, at *7 (S.D.N.Y. May 27, 2010) (same); see also Garrett v. Mazza, No. 97 Civ. 9148, 2010 WL 653489, at *11 n. 8 (S.D.N.Y. Feb. 22, 2010) (“While neither the Supreme Court nor the Second Circuit have specifically addressed the question of whether an individual plaintiff can maintain a private, non-class action pattern or practice claim, district courts within this circuit have suggested that they cannot.”); Tucker, 2005 WL 2385844, at *4-5 (finding same and dismissing individual plaintiffs pattern or practice claim); cf. Davis v. Coca-Cola Bottling Co. Consolidated, 516 F.3d 955, 964-67 (11th Cir.2008) (finding pattern or practice claims may be brought by the EEOC or as a class action pursuant to Rule 23 “by one or more of the similarly situated employees”); Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1106-08 (10th Cir.2001) (noting differences between pattern or"
},
{
"docid": "4528032",
"title": "",
"text": "of Richmond, 467 U.S. 867, 876 n. 9, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). However, “no such pattern-or-practice theory of liability is available to the private non-class plaintiffs in this case.” Chin v. Port Auth. of N.Y. & N.J. Inc., 685 F.3d 135, 145-46 (2d Cir.2012). See also Houston v. Manheim-New York, No. 09 Civ. 4544, 2010 WL 6121688, at *5-6 (S.D.N.Y. July 7, 2010) (“Pattern or practice discrimination claims ... must be made as a class action.”), report and recommendation adopted, 2011 WL 924199 (S.D.N.Y. March 16, 2011); United States v. City of New York, 631 F.Supp.2d 419, 427 (S.D.N.Y. 2009) (“[T]his Court holds that individuals cannot maintain a private, non-class, pattern-or-practice claim”). Here, Mazyck and his fellow Plaintiffs have not brought their claims as a class action, and thus cannot assert pattern or practice claims of discrimination. Defendants’ Motion for Summary Judgment on these claims is hereby GRANTED. F. Claims Against MTA and Individual Defendants in Their Official Capacities Under 42 U.S.C. §§ 1981 and 1983 Mazyck alleges that Defendant MTA is liable under 42 U.S.C. § 1981 and 1983 for engaging in discriminatory conduct by subjecting him to disparate treatment, a hostile work environment, retaliation and a pattern and practice of discrimination. Plaintiff also asserts claims under §§ 1981 and 1983 against individual Defendants Elliot Sander, William Morange, Kevin McConville, and Terrance Culhane in their official capacities. These claims against individual defendants in their official capacity are deemed to be brought against the MTA itself. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). As a threshold matter, Defendants Sander and Morange are sued purely in their official capacities (Am. Compl. ¶¶ 16-17), and thus they cannot also be held individually liable under § 1983. Hafer, 502 U.S. at 27, 112 S.Ct. 358. Similarly, to the extent that Defendants Kevin McConville and Terrance Culhane are sued in their official capacities, they also cannot be held liable under § 1983. Section 1981 “outlaws discrimination with respect to the enjoyment of benefits, privileges, terms, and conditions of a contractual relationship, such as employment.”"
},
{
"docid": "7397235",
"title": "",
"text": "United States v. City of New York, 631 F.Supp.2d 419, 427 (S.D.N.Y.2009) (“[T]his Court holds that individuals cannot maintain a private, non-class, pattern-or-practice claim.”); Marrow v. Potter, No. 06 Civ. 13681, 2010 WL 6334856, at *7 (S.D.N.Y. May 27, 2010) (same); see also Garrett v. Mazza, No. 97 Civ. 9148, 2010 WL 653489, at *11 n. 8 (S.D.N.Y. Feb. 22, 2010) (“While neither the Supreme Court nor the Second Circuit have specifically addressed the question of whether an individual plaintiff can maintain a private, non-class action pattern or practice claim, district courts within this circuit have suggested that they cannot.”); Tucker, 2005 WL 2385844, at *4-5 (finding same and dismissing individual plaintiffs pattern or practice claim); cf. Davis v. Coca-Cola Bottling Co. Consolidated, 516 F.3d 955, 964-67 (11th Cir.2008) (finding pattern or practice claims may be brought by the EEOC or as a class action pursuant to Rule 23 “by one or more of the similarly situated employees”); Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1106-08 (10th Cir.2001) (noting differences between pattern or practice and individualized discrimination claims and finding decertification of class improper where trial court did not recognize plaintiffs were making pattern or practice claim). Under the Supreme Court’s initial formulation of the burden-shifting scheme in pattern or practice claims, plaintiffs need not establish individual instances of discrimination; they need only establish that a pattern or practice of discrimination exists. International Brotherhood of Teamsters, 431 U.S. at 360 & n. 46, 97 S.Ct. 1843. Plaintiffs generally rely on statistical evidence and “testimony from protected class members” to meet this burden; even if an employer then rebuts individual instances of discrimination, it must demonstrate that statistical evidence “ ‘is either inaccurate or insignificant’ ” in order to escape liability. Robinson, 267 F.3d at 158-59 (quoting International Brotherhood of Teamsters, 431 U.S. at 360, 97 S.Ct. 1843). Once a pattern or practice of discrimination is found, an individual plaintiff carries a rebuttable presumption that she was the victim of discrimination into the second phase of trial at which damages are established. International Brotherhood of Teamsters, 431 U.S. at"
},
{
"docid": "804526",
"title": "",
"text": "agreement. Discussion A. Title VII Standard for Prima Facie Case The plaintiffs in a Title VII action may establish a prima facie case of class-based discrimination by “demonstrating the existence of a discriminatory pattern and practice.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 359, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977) (quoting Franks v. Bowman Transportation Co., 424 U.S. 747, 772, 96 S.Ct. 1251, 1267, 47 L.Ed.2d 444 (1976)). In or der to prove such a pattern or practice, plaintiffs must demonstrate more than “isolated or ‘accidental’ or sporadic discriminatory acts.” They must show that discrimination was “the regular rather than the unusual practice” of the defendant. Teamsters v. United States, supra, 431 U.S. at 336, 97 S.Ct. at 1855. In determining whether proof of discriminatory intent is a necessary part of a Title VII plaintiff’s prima facie showing, the court first must determine whether the claim is one of disparate treatment or of disparate impact. In a claim of disparate treatment, the plaintiff alleges that: [t]he employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some instances be inferred from the mere fact of differences in treatment. Teamsters v. United States, supra, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15. By contrast, in a disparate impact ease the plaintiff alleges facially neutral employment practices that have a more severe impact on a particular group. Proof of discriminatory intent is not essential to such a case. Id. Plaintiffs in the instant case allege that defendant as a general practice pays less to female members of the instructional staff than it pays to similarly qualified male members. Accordingly, under the above definition, plaintiffs have raised a claim of disparate treatment. Plaintiffs’ initial burden, therefore, is to show a pattera or practice of intentional salary discrimination against women. B. Plaintiffs’ Evidence In asserting their claim of disparate treatment, plaintiffs rely almost exclusively upon a series of statistical studies of the CUNY instructional staff conducted"
},
{
"docid": "7397232",
"title": "",
"text": "U.S. at 637, 105 S.Ct. 3346). The court did not have occasion to apply this rule because the defendants had waived enforcement of the offending provisions of the agreement. Id. Though only dicta, these statements shed light on the Second Circuit’s holdings in American Express by demonstrating, first, that the vindication of statutory rights analysis may apply with equal force to enforcement of Title VII rights as to effectuation of antitrust prohibitions under the Sherman Act. E.g., American Express I, 554 F.3d at 319 (citing “a firm principle of antitrust law” that “an agreement which in practice acts as a waiver of future liability under the federal antitrust statutes is void as a matter of public policy”); see also 14 Penn Plaza LLC, 556 U.S. at -, 129 S.Ct. at 1469 (“[FJederal antidiscrimination rights may not be prospectively waived.”). Second, they show that the holdings of American Express not apply only to “negative value” class action claims, that is, claims that are so small in value that it is not economically viable to pursue them as individual claims. (Def. Reply Memo, at 3-6). The Second Circuit is plainly willing to apply the federal substantive law of arbitrability to a variety of claims that fall under the FAA. In this case, the plaintiff has alleged that the defendants violated Title VII by engaging “in an intentional, company-wide, and systematic policy, pattern, and/or practice of discrimination against its female Associates, Vice Presidents, and Managing Directors.” (Compl., ¶ 138). “Disparate treatment claims under Title VII generally are of two types: (1) individual disparate treatment claims ... and (2) pattern-or-practice disparate treatment claims that center on group-wide allegations of intentional discrimination.” Robinson v. Metro-North Commuter Railroad Co., 267 F.3d 147, 158 n. 3 (2d Cir.2001). “Pattern-or-practice disparate treatment claims focus on allegations of widespread acts of intentional discrimination against individuals. To succeed on a pattern-or-practice claim, plaintiffs must prove more than sporadic acts of discrimination; rather, they must establish that intentional discrimination was the defendant’s ‘standard operating procedure.’ ” Id. at 158 (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336,"
},
{
"docid": "1487643",
"title": "",
"text": "Was Denied a Promotion In his Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment, plaintiff alleges a “pattern and practice of promoting individuals in their 30s over individuals who are more qualified and in the protected age group.” (PI. Mem. Opp. Summ. J. at 17.) The evidence of this consists of three occasions on which plaintiff applied for a promotion that ultimately went to a younger candidate: the 2005 promotion to Assistant Chief (which went to Mullee) and two earlier promotions for which the statute of limitations has expired. (See id. at 17-20.) A pattern-and-practice discrimination claim is based on “allegations of widespread acts of intentional discrimination against individuals.” Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 158 (2d Cir.2001). To succeed, a plaintiff must “prove more than sporadic acts of discrimination; rather, [he] must establish that intentional discrimination was the defendant’s ‘standard operating procedure.’ ” Id. (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). “[Generalized allegations that discrete discriminatory acts constitute a pattern or practice of unlawful discrimination are insufficient” to sustain a pattern-and-practice claim. Thomas v. S.E.A.L. Sec., Inc., 2007 WL 2446264, *10, 2007 U.S. Dist. LEXIS 63841, at *31 (S.D.N.Y. Aug. 30, 2007). To begin with, we note that it is uncertain whether a pattern-and-practice claim can be brought other than as a class action. See id.; Blake v. Bronx Leb. Hosp. Ctr., 2003 WL 21910867, *5, 2003 U.S. Dist. LEXIS 13857, at *14-15 (S.D.N.Y. Aug. 11, 2003) (“[T]he court doubts that a plaintiff can bring a ‘pattern and practice’ claim in a non-class action complaint.”). We need not take a position on that issue, however, because plaintiff has not come close to stating such a claim here. Plaintiff has alleged a series of discrete discriminatory events over the course of three years. He has not presented any evidence of a discriminatory policy or “standard operating procedure” at the USMS. Plaintiff can not maintain a cause of action as to the 2002 and 2003 promotions because he did not file a Notice of"
},
{
"docid": "4528031",
"title": "",
"text": "Boyd v. Presbyterian Hosp. in City of New York, 160 F.Supp.2d 522, 537 (S.D.N.Y.2001). Plaintiff has not demonstrated that he was unequivocally entitled to compensation for participation in the proceeding. Id. at 538. Moreover, it was Plaintiffs refusal to have MTA counsel accompany him that resulted in him traveling to the proceeding alone and without compensation. Plaintiff cannot refuse accompaniment with the knowledge that he would not be paid as a result, and later claim that failing to pay him was adverse. Accordingly, to the extent that Mazyck’s retaliation claim is based on the denial of compensation for his testimony on behalf of Armstrong, Defendant’s Motion for Summary Judgment is GRANTED. E. Pattern or Practice of Discrimination Claims Plaintiff Mazyck maintains that Defendants’ conduct towards racial minorities in the MTA PD amounted to a pattern or practices of discrimination. Although Title VII initially envisioned that the government would pursue pattern or practices claims, 42 U.S.C. § 2000e-6, courts have unequivocally granted private individuals the right to vindicate those claims. See Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 n. 9, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). However, “no such pattern-or-practice theory of liability is available to the private non-class plaintiffs in this case.” Chin v. Port Auth. of N.Y. & N.J. Inc., 685 F.3d 135, 145-46 (2d Cir.2012). See also Houston v. Manheim-New York, No. 09 Civ. 4544, 2010 WL 6121688, at *5-6 (S.D.N.Y. July 7, 2010) (“Pattern or practice discrimination claims ... must be made as a class action.”), report and recommendation adopted, 2011 WL 924199 (S.D.N.Y. March 16, 2011); United States v. City of New York, 631 F.Supp.2d 419, 427 (S.D.N.Y. 2009) (“[T]his Court holds that individuals cannot maintain a private, non-class, pattern-or-practice claim”). Here, Mazyck and his fellow Plaintiffs have not brought their claims as a class action, and thus cannot assert pattern or practice claims of discrimination. Defendants’ Motion for Summary Judgment on these claims is hereby GRANTED. F. Claims Against MTA and Individual Defendants in Their Official Capacities Under 42 U.S.C. §§ 1981 and 1983 Mazyck alleges that Defendant MTA is"
},
{
"docid": "8439296",
"title": "",
"text": "members and white employees. The district court rejected plaintiffs’ individual and classwide claims of discrimination. The court concluded that plaintiffs’ evidence, both statistical and otherwise, failed to show that the.plaintiffs had suffered discrimination as a result of the defendant’s promotion and progression policies. Plaintiffs appeal from that judgment. Before turning to a discussion of the class claims, we note that the ultimate question of the existence of discrimination is a question of fact. Thus, the district court’s findings of fact, including its ultimate finding on the existence of discrimination, may not be overturned unless clearly erroneous. Pullman-Standard v. Swint, 456 U.S. 273,102 S.Ct. 1781,1788, 72 L.Ed.2d 66 (1982). II. CLASS CLAIMS A plaintiff may bring a cause of action under Title VII under either the disparate treatment or the disparate impact theory of recovery. Under the disparate treatment theory, the Title VII plaintiff must prove the existence of a pattern and practice of race discrimination. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). To succeed in a disparate treatment case, a plaintiff must “prove more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts.” Id. at 336 & n. 16, 97 S.Ct. at 1855 & n. 16. He or she must “establish by a preponderance of the evidence that racial discrimination was the company’s standard operating procedure — the regular rather than the unusual practice.” Ibid. In a disparate treatment ease discriminatory intent must be established by either direct or circumstantial evidence. Teamsters, supra, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15; Wheeler v. City of Columbus, Miss., 686 F.2d 1144, 1150 (5th Cir.1982). By contrast, in a disparate impact case a Title VII plaintiff need not show discriminatory intent. Rather, he or she must show that a facially neutral employment practice has the result of producing a significantly adverse impact on one race. Ibid.; Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977). The district court analyzed the class claims under the disparate impact theory, concluding that"
},
{
"docid": "23693018",
"title": "",
"text": "female applications for such employment at the University of Houston. Initially, we note that, the class having been certified prior to trial, the district court’s dismissal of the named plaintiffs’ claims and our affirmance of that decision do not negate the need for consideration of the class claims. Thurston v. Dekle, 531 F.2d 1264, 1271 (5th Cir. 1976). Plaintiffs essentially allege that the university treats women less favorably than men because of their sex; there is no claim that employment practices of the university that are facially neutral in their treatment of male and female employees fall more harshly on females than on males. Accordingly, plaintiffs have stated a “disparate treatment,” as opposed to a “disparate impact,” claim and must therefore prove discriminatory motive. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1977); Lee v. Conecuh County Board of Education, 634 F.2d 959, 961 n.3 (5th Cir. 1981). Furthermore, plaintiffs’ class claims, alleging that the university engaged in a systemwide pattern or practice of discriminating against women, cannot succeed on the basis of proof of “the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts. [Rather, plaintiffs] had to establish by a preponderance of the evidence that [sex] discrimination was the [university’s] standard operating procedure — the regular rather than the unusual practice.” Teamsters, 431 U.S. at 336, 97 S.Ct. at 1855. Plaintiffs introduced a substantial amount of statistical evidence in an attempt to meet their burden of proving that the university acted with a discriminatory motive and engaged in a pattern or practice of discriminating against women. In Hazelwood School District v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977), also a Title VII disparate treatment class action, the Supreme Court did not discuss explicitly the discriminatory motive issue but stated that “[w]here gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.” Accordingly, where the statistical showing is sufficiently strong in a disparate treatment action,"
}
] |
761641 | statute. Even if there were jurisdiction, they claim that a debtor must choose between an action under the FDCPA and an action under section 524(a) of the Bankruptcy Code — the debtor cannot have both remedies, say the defendants. For the reasons articulated below, the court holds that claims alleging violations of the FDCPA and 11 U.S.C. § 524(a) can in fact co-exist, even when they are based upon the same set of facts. However, the court also holds that it does not have subject matter jurisdiction to entertain the. FDCPA cause of action asserted, at least in this case. Regarding the first of these two issues, there is a split in the circuits. The Ninth Circuit in REDACTED The Seventh Circuit, in Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir.2004), ruled to the contrary, finding that violation of the discharge injunction could form a basis for recovery under the FDCPA. The Randolph approach is the more persuasive, in this court’s view. There, the Seventh Circuit explained that the line of authority that suggested the two causes of action are incompatible were built on a false premise — to wit, that the Bankruptcy Code “pre-empted” the FDCPA. The court noted (somewhat dryly) that both statutes are federal, so a preemption analysis could not be applicable. Randolph, 368 F.3d at 730. Said Judge Easterbrook, writing for the court, “when two federal | [
{
"docid": "9826939",
"title": "",
"text": "that relegating a discharged bankrupt to other courts for vindication of his discharge resulted so often in the loss of its intended benefit and frustration of the objective of the federal legislation that jurisdiction of determining the effect of a discharge was given to the bankruptcy court. Report of the Commission on the Bankruptcy Laws of the United States, H.R. Doc. No. 137, 93d Cong., 1st Sess. (1973), quoted in H.R. Rep. No. 95-595 at 46-47 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6008. For these reasons we cannot say that Congress intended to create a private right of action under § 524, and we shall not .imply one. IV Walls contends that, contrary to what the district court held, the Bankruptcy Code does not preclude a simultaneous claim under the FDCPA. She calls upon us to read the two competing statutes jointly, as the Supreme Court urged courts to do whenever possible in Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984). In her view, Wells Fargo engaged in unfair and unconscionable collection practices, which are forbidden by the FDCPA, by trying to collect her debt in violation of the discharge injunction. This, she maintains, is outside of the bankruptcy proceeding because the bankruptcy is over and done with, while the FDCPA (whose purpose is to prevent bankruptcy) is still needed to protect a debtor who has been discharged. There is no escaping that Walls’s FDCPA claim is based on an alleged violation of § 524. As the district court noted, this necessarily entails bankruptcy-laden determinations. Were her payments “voluntary” under § 524(f)? Was she required to enter into a reaffirmation agreement pursuant to § 524(c)? How much of a free ride did her “ride through” under Parker afford? The Bankruptcy Code provides its own remedy for violating § 524, civil contempt under § 105. To permit a simultaneous claim under the FDCPA would allow through the back door what Walls cannot accomplish through the front door — a private right of action. This would circumvent the remedial scheme of the Code under which Congress"
}
] | [
{
"docid": "2925744",
"title": "",
"text": "after objection from the debtor. It is difficult for this Court to understand how a procedure outlined by the Bankruptcy Code could possibly form the basis of a violation under the FDCPA”); Middlebrooks v. Interstate Credit Control, Inc., 391 B.R. 434, 437 (Bankr.D.Min.2008) (holding that an FDCPA action cannot be premised on the filing of a proof of claim in bankruptcy court); Gray-Mapp v. Sherman, 100 F.Supp.2d 810, 813-14 (N.D.Ill.1999) (same); Baldwin v. McCalla, No. 98-C-4280, 1999 WL 284788 at *3-4 (N.D.Ill. Apr. 19, 1999) (same)). See also Jenkins v. Genesis Financial Solutions and Vativ Recovery Solutions, LLC, 456 B.R. 236, 240 (Bankr.E.D.N.C.2011) (“The Court is not persuaded that the filing of a proof of claim can constitute regulated ‘collection’ activity within the meaning of [the FDCPA]”); Jude Jacques v. U.S. Bank (In re Jacques), 416 B.R. 63, 79 (Bankr.E.D.N.Y.2009) (holding that “the Bankruptcy Code precludes assertion of a claim under the FDCPA”); In re Varona, 388 B.R. 705, 723 (holding that proofs of claim are not false or fraudulent merely because statute of limitations may have run on any cause of action to collect on the debts in question); and B-Real, LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 235-36 (9th Cir. BAP 2008) (holding that Congress did not intend for the FDCPA to apply in the context of proofs of claim filed in bankruptcy). The Debtor ostensibly ignores this consensus and instead bases his FDCPA claim on a brief citation to the Seventh Circuit’s decision in Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir.2004) in which a FDCPA claim was permitted to proceed. But Randolph was not a case about the filing of invalid or stale proofs of claim — in fact, it was not about proofs of claim at all. Randolph concerned the consolidation of separate actions brought by three Chapter 13 debtors who alleged violations of the FDCPA by debt collection agencies that had commenced collection efforts on discharged debts using unfair practices — including by contacting the debtors directly even though they were each represented by counsel. Id. at 728-29. Accordingly, the Randolph"
},
{
"docid": "17675465",
"title": "",
"text": "to consider [that rule] in this case.” Id. n. 2 (citations omitted). The Seventh Circuit in Randolph v. IMBS, Inc., 368 F.3d 726, took a different approach. In Randolph, the court considered consolidated appeals involving FDCPA claims arising from attempts to collect debts that violated the automatic stay. The district courts dismissed the FDCPA claims on the ground that they were “precluded” or “preempted” by the Bankruptcy Code. The Seventh Circuit reversed, explaining that “[w]hen two federal statutes address the same subject in different ways, the right question is whether one implicitly repeals the other.” Id. at 730. Repeal requires either an “irreconcilable conflict between the statutes or a clearly expressed legislative decision that one replace the other.” The court emphasized that repeal by implication “is a rare bird indeed.” Id. The Seventh Circuit found no hreconcilable conflict between the FDCPA prohibitions and the Bank ruptcy Code’s discharge injunction and automatic stay provisions, and no clearly expressed congressional statement that the Code preclude FDCPA claims arising in bankruptcy. Although the Bankruptcy Code and FDCPA provisions at issue in Randolph overlapped, the court found that because “[i]t is easy to enforce both statutes, and any debt collector can comply with both simultaneously,” the FDCPA claim could proceed. Id. at 730. We will follow the Seventh Circuit’s approach. When, as here, FDCPA claims arise from communications a debt collector sends a bankruptcy debtor in a pending bankruptcy proceeding, and the communications are alleged to violate the Bankruptcy Code or Rules, there is no categorical preclusion of the FDCPA claims. When, as is also the case here, the FDCPA claim arises from communications sent in a pending bankruptcy proceeding and there is no allegation that the communications violate the Code or Rules, there is even less reason for categorical preclusion. The proper inquiry for both circumstances is whether the FDCPA claim raises a direct conflict between the Code or Rules and the FDCPA, or whether both can be enforced. This approach is consistent with Supreme Court precedents recognizing a presumption against the implied repeal of one federal statute by another. “ ‘[W]hen two"
},
{
"docid": "19767973",
"title": "",
"text": "This finding does not undermine the goals and purpose of the FDCPA, which is to protect consumers from abusive methods of collection. The filing of a proof of claim does not implicate such collection methods, as discussed above. Accordingly, even taking debtor’s allegations as true, I conclude that she has failed to state a claim for relief against appellant under the FDCPA. III. Walls vs. Randolph Dichotomy The parties and the bankruptcy court highlight an apparent disagreement between the Ninth Circuit in Walls v. Wells Fargo Bank, N.A. and the Seventh Circuit in Randolph v. IMBS, Inc. on whether the Code precludes or impliedly repeals the FDCPA where the underlying allegedly wrongful act arises from or is related to a bankruptcy proceeding of the debtor. In Randolph, after thoughtful analysis, the Seventh Circuit addresses “[wjhether overlapping and not entirely congruent remedial systems [the FDCPA versus the Code] can coexist” and concludes the Code “does not work an implied repeal of the FDCPA.” Randolph, 368 F.3d at 731-732. It concludes that the two federal statutes can coexist so long as the overlap does not create an irreconcilable conflict. To the contrary, the Ninth Circuit in Walls addresses facts similar to those in Randolph and, without the thorough analysis of Randolph, appears to broadly conclude that any remedy under FDCPA would circumvent the Code’s remedial scheme. Walls, 276 F.3d 502. In doing so, the Ninth circuit relies heavily on its ruling in MSR Exploration, Ltd. v. Meridian Oil, Inc., 74 F.3d 910 (9th Cir.1996) including adopting an extensive quote about the comprehensive nature of the Code. Walls, 276 F.3d at 510. However, MSR Exploration is a preemption case, holding that the Code preempts a state law cause of action (malicious prosecution) arising under California law. Because of the reliance on MSR Exploration and the lack of any discussion in Walls of whether the Code impliedly repeals a competing federal statute, i.e. the FDCPA, I question whether the Ninth Circuit intended the holding of Walls to apply to any overlap between the two statutes or be limited to its facts: whether a violation"
},
{
"docid": "19767947",
"title": "",
"text": "be frustrated. The same concerns we articulate above in rejecting Debtor’s state CPA claim justify a similar result as to her FDCPA action. Put simply, Congress did not intend to allow a debtor to bypass the statutory scheme clearly embodied in the language of the Code. See also Wan v. Discover Fin. Servs., Inc. (In re Wan), 324 B.R. 124, 127 (N.D.Cal.2005) (communication alleged to be in violation of the FDCPA made to the debtor’s counsel during the pendency of the bankruptcy case raised an even greater concern about potential overlap and conflict between the Code and the FDCPA than was present in Walls). Spurning Walls, both Debtor and the bankruptcy court would urge us to invoke the reasoning espoused in Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir.2004), a case in which a debtor’s FDCPA claim for violating the Code was allowed to proceed. In Randolph, a creditor sent a post-discharge letter to the debtor, allegedly in violation of the § 524 discharge. Noting that one federal statute should be found to have impliedly repealed another only when an irreconcilable conflict occurs when both co-exist, Randolph asserts that a court must evaluate whether competing statutes conflict before deciding whether preclusion applies. Id. at 730-31. Finding no direct conflict between the Code and FDCPA under the facts before it, the Seventh Circuit ruled that the statutes could both be applied, and the debtor could therefore pursue a claim for relief against the creditor under FDCPA outside the bankruptcy court. Id. at 733. Of course, as a decision of the Ninth Circuit, this Panel is bound to apply Walls even were we inclined to agree with the logic and reasoning of Randolph. McDonald v. Checks-N-Advance, Inc. (In re Ferrell), 358 B.R. 777, 791 (9th Cir. BAP 2006). But even if not so constrained, we would respectfully reject Randolph’s analysis in this context and conclude, as in Walls, that the Code precludes application of the FDCPA under our facts. Unlike in Randolph, where the debtor’s claim against the creditor was based upon the creditor’s actions taken after conclusion of the bankruptcy"
},
{
"docid": "18488975",
"title": "",
"text": "Bankruptcy Code. The Fifth Circuit has not ruled on this specific issue, and the only two circuit courts of appeal that have considered it disagree on whether actions under both the Bankruptcy Code and the FDCPA can co-exist. The Ninth Circuit held in Walls v. Wells Fargo, 276 F.3d 502 (9th Cir.2002) that a debtor may not maintain simultaneous actions under both 11 U.S.C. § 105 and the FDCPA. The court wrote that the debt- or’s FDCPA claim was actually an action for sanctions under Bankruptcy Code § 105 for the creditor’s alleged violation of the 11 U.S.C. § 524 discharge injunction. Id. at 510. As a result, the debtor/plaintiffs sole remedy was under the Bankruptcy Code, and the debtor could not “circumvent the remedial scheme of the Code” by suing the creditor under the FDCPA. Id. A different analysis in Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir.2004) led the court to conclude that a debtor could make an FDCPA claim for a creditor’s alleged violations of the discharge injunction. The Seventh Circuit decided that although the Bankruptcy Code and the FDCPA may overlap, the Bankruptcy Code did not repeal the FDCPA. Thus, it reasoned that a debtor can bring an action against a creditor under both provisions. The court declared that “[o]ne federal statute does not preempt another,” but that one of two federal statutes addressing the same subject implicitly can repeal the other if there is an “irreconcilable conflict between the statutes or a clear expressed legislative decision that one replace the other.” Id. at 730. Randolph held that a debtor could seek to enforce both title ll’s provision penalizing intentional violations of the automatic stay and the FDCPA, concluding that the “operational differences” between the two schemes were not irreconcilable. Reported decisions from several lower courts considering whether a debtor can seek relief under the FDCPA specifically in connection with the filing of a proof of claim in a bankruptcy proceeding, including Seventh Circuit jurisprudence preceding Randolph, have concluded a debtor cannot seek relief under the FDCPA for creditors’ actions relating to their bankruptcy cases."
},
{
"docid": "17675464",
"title": "",
"text": "Second Circuit reached a similar result in Simmons v. Roundup Funding, LLC, 622 F.3d 93, but without taking a broad analytical approach. The debtors in Simmons filed an FDCPA claim alleging that the defendant debt collector had filed an inflated proof of claim in their bankruptcy proceeding. The Second Circuit held that the debtors had no FDCPA claim, stating that “[t]here is no need to protect debtors who are already under the protection of the bankruptcy court, and there is no need to supplement the remedies afforded by bankruptcy itself.” Id. at 96. The Bankruptcy Code provided both a mechanism to challenge proofs of claim and remedies if they were improperly filed, including by revoking fraudulent proofs of claim and by invoking the bankruptcy court’s contempt power. Id. But the Second Circuit noted that while some courts “have ruled more broadly that no FDCPA action can be based on an act that violates any provision of the Bankruptcy Code, because such violations are dealt with exclusively by the Bankruptcy Code[,] ... we are not compelled to consider [that rule] in this case.” Id. n. 2 (citations omitted). The Seventh Circuit in Randolph v. IMBS, Inc., 368 F.3d 726, took a different approach. In Randolph, the court considered consolidated appeals involving FDCPA claims arising from attempts to collect debts that violated the automatic stay. The district courts dismissed the FDCPA claims on the ground that they were “precluded” or “preempted” by the Bankruptcy Code. The Seventh Circuit reversed, explaining that “[w]hen two federal statutes address the same subject in different ways, the right question is whether one implicitly repeals the other.” Id. at 730. Repeal requires either an “irreconcilable conflict between the statutes or a clearly expressed legislative decision that one replace the other.” The court emphasized that repeal by implication “is a rare bird indeed.” Id. The Seventh Circuit found no hreconcilable conflict between the FDCPA prohibitions and the Bank ruptcy Code’s discharge injunction and automatic stay provisions, and no clearly expressed congressional statement that the Code preclude FDCPA claims arising in bankruptcy. Although the Bankruptcy Code and FDCPA provisions"
},
{
"docid": "8525933",
"title": "",
"text": "that the FDCPA claims relate to the same 3002.1(c) notice complained of in the Trevinos’ original pleading. Accordingly, the FDCPA claims were timely filed. c. The Bankruptcy Code Does Not Preempt Relief Under the FDCPA HSBC argues in the alternative that the filing of a 3002.1(c) notice cannot be considered a violation of the FDCPA because the Bankruptcy Code preempts any remedial scheme imposed under the FDCPA. Federal courts have held that specific provisions of the Bankruptcy Code may preclude a simultaneous claim under the FDCPA. Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 510 (9th Cir.2002); Simmons v. Roundup Funding, LLC, 622 F.3d 93, 95 (2d Cir.2010); In re Pariseau, 395 B.R. 492, 494 (Bankr.M.D.Fla.2008). In Middlebrooks v. Interstate Credit Control, Inc., the court reasoned that while typically the Bankruptcy Code and the FDCPA coexist peacefully, permitting an FDCPA action based on a false proof of claim could “could potentially undermine the Bankruptcy Code’s specific provisions for administration of the debtor’s estate.” 391 B.R. 434, 437 (D.Minn.2008). An FDCPA claim, however, can only be precluded by the Bankruptcy Code if the two statutes are in direct conflict. “When two federal statutes address the same subject in different ways, the right question is whether one implicitly repeals the other — and repeal by implication is a rare bird indeed.” Randolph v. IMBS, Inc., 368 F.3d 726, 730 (7th Cir.2004). See also J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Intern., Inc., 534 U.S. 124, 143-44, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001) (“[W]hen two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.”). The Randolph court found that because the automatic stay provisions of the Bankruptcy Code and the FDCPA did not explicitly conflict, a creditor’s action which violated the automatic stay could also yield liability under the FDCPA. Randolph, 368 F.3d at 728. Similarly, in Simon v. FIA Card Serv., N.A, the Third Circuit held that absent a specific conflict between the Code and the FDCPA, the FDCPA is not preempted. 732"
},
{
"docid": "10285277",
"title": "",
"text": "Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of Engineers, 619 F.3d 1289, 1299 (11th Cir.2010). “The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. ‘When there are two acts upon the same subject, the rule is to give effect to both if possible.... The intention of the legislature to repeal “must be clear and manifest.” ’ ” Morton v. Mancan, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974) (quoting United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181 (1939)); see also Rodriguez v. United States, 480 U.S. 522, 524, 107 S.Ct. 1391, 1392, 94 L.Ed.2d 533 (1987). While neither the Supreme Court nor the Eleventh Circuit has ruled upon the question posed here, other circuits have split on the question of whether the Bankruptcy Code precludes the FDCPA. The Second and the Ninth Circuits have broadly ruled that it does. Simmons v. Roundup Funding, LLC, 622 F.3d 93, 96 (2nd Cir.2010) (holding that the Bankruptcy Code provides exclusive remedies for inflated proofs of claim, dismissing an FDCPA claim); Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 510 (9th Cir.2002) (holding that § 524(a) of the Bankruptcy Code provided the exclusive remedy for violation of the discharge injunction, dismissing an FDCPA claim). The Third ' and the Seventh Circuits have ruled to the contrary, finding that the FDCPA and the Bankruptcy Code may peacefully co-exist, allowing FDCPA claims in cases involving debtors that were in bankruptcy. Simon v. FIA Card Services, N.A., 732 F.3d 259, 271 (3d Cir.2013) (holding that debt collectors’ communication with debtors in bankruptcy violated the FDCPA and that an FDCPA remedy was not precluded by the Bankruptcy Code); Randolph v. IMBS, Inc., 368 F.3d 726, 732 (7th Cir.2004) (holding that the Bankruptcy Code does not work an implied repeal of the FDCPA in action involving demand letters sent in"
},
{
"docid": "1923780",
"title": "",
"text": "Asset Acceptance, 510 B.R. at 227. Brim-mage, in turn, cites a number of cases which support the view that the FDCPA applies to filing time-barred proofs of claim. (Responce, Adversary Proceeding No. 14-A-00674, Dkt. No. 11, p. 6); see also Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir.2014); Patrick v. PYOD, LLC, 39 F.Supp.3d 1032; 2014 WL 4100414 (S.D.Ind.2014); Asset Acceptance, 510 B.R. 225. While these cases are persuasive, this Court is ultimately bound only by the Seventh Circuit’s decisions, which in this case is Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir.2004). In Randolph the Seventh Circuit had to decide whether the Bankruptcy Code preempts the FDCPA when the alleged debt collection act violates ' both the FDCPA and the Code. Randolph, 368 F.3d at 729. The case itself was a consolidation of three cases with similar facts. The debtors had received debt collection letters from their respected debt collectors after the debtors’ chapter 13 plans had been confirmed. The debt collectors, however, did not know of the debtors’ bankruptcy case. As a result, the issue was whether section 1692e(2)(A) of the FDCPA (which creates a strict liability rule) or section 362(h) of the Bankruptcy Code (which requires scienter) applied. Two district courts concluded that “§ 362(h) ‘preempts’ § 1692e(2)(A).” Id. at 730. The Seventh Circuit reversed. In reversing, the Seventh Circuit reasoned that “[o]ne federal statute does not preempt another.” Id. (citing Baker v. IBP, Inc., 357 F.3d 685, 688 (7th Cir.2004)). Rather the issue is “one based on the operational differences between the statutes. These do not, however, add up to irreconcilable conflict; instead the two statutes overlap, ... It is easy to enforce both statutes, and any debt collector can comply with both simultaneously.” Id. Ultimately, the Court concluded that the Bankruptcy Code, while overlapping with the FDCPA, does not repeal the FDCPA, rather the two to coexist together. Id. at 732-33. “[A]s long as people can comply with both, then courts can enforce both.” Id. at 731. This Court, therefore, has to determine whether one can comply with the FDCPA and the"
},
{
"docid": "16971411",
"title": "",
"text": "claims have been discharged, the bankruptcy court and the Bankruptcy Code should dictate the remedy for a violation of that statutory injunction. The court repeated the district court’s conclusion that a determination of the debtor’s FDCPA claim “necessarily entails bankruptcy-laden determinations” such as whether the debtor’s payments were voluntary under Section 524(f), whether she was required to enter into a reaffirmation agreement under Section 524(c), etc. The court also noted that the Bankruptcy Code provides a civil contempt remedy under Section 105 for violation of the discharge injunction and that the existence of this remedy justified dismissal of the debtor’s simultaneous claim under the FDCPA. There is considerable disagreement among courts as to whether the Bankruptcy Code and the FDCPA can peaceably coexist without one treading unfairly on the other’s objectives. The Ninth Circuit Court of Appeals in Walls held that the FDCPA should give way to the Bankruptcy Code remedies in the context of a violation of the discharge injunction. The Seventh Circuit Court of Appeals in Randolph held just the opposite. In Randolph, the court took up three consolidated lower court cases, each holding that the Bankruptcy Code provides the sole remedy against post-bankruptcy debt-collection efforts. Disagreeing with Walls, however, the Seventh Circuit reversed the three lower court cases, concluding that there was no irreconcilable conflict between the FDCPA and the Bankruptcy Code and that “[I]t is easy to enforce both statutes, and any debt collector can comply with both simultaneously.” 368 F.3d at 730. There are plenty of cases adopting the Walls reasoning and plenty of cases alined with Randolph. Where the facts of the case indicate that the debtor’s pursuit of an FDCPA claim will not interfere with the administration of the bankruptcy case, courts have been more willing to permit the claims to go forward, rejecting the creditor’s preemption argument. See, e.g., Doughterty v. Wells Fargo Home Loans, Inc., supra (claim based upon post-petition, post-confirmation acts); Wagner v. Ocwen Fed. Bank, supra n. 8 (collection action complained of occurred after the bankruptcy proceedings were closed); Peeples v. Blatt, supra n. 8 (collection action complained of"
},
{
"docid": "4558821",
"title": "",
"text": "of the FDCPA and 11 U.S.C. § 524(a) can in fact co-exist, even when they are based upon the same set of facts. However, the court also holds that it does not have subject matter jurisdiction to entertain the. FDCPA cause of action asserted, at least in this case. Regarding the first of these two issues, there is a split in the circuits. The Ninth Circuit in Walls v. Wells Fargo Bank, N.A., 276 F.3d 502 (9th Cir.2002) found that the two causes of action cannot co-exist. The Seventh Circuit, in Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir.2004), ruled to the contrary, finding that violation of the discharge injunction could form a basis for recovery under the FDCPA. The Randolph approach is the more persuasive, in this court’s view. There, the Seventh Circuit explained that the line of authority that suggested the two causes of action are incompatible were built on a false premise — to wit, that the Bankruptcy Code “pre-empted” the FDCPA. The court noted (somewhat dryly) that both statutes are federal, so a preemption analysis could not be applicable. Randolph, 368 F.3d at 730. Said Judge Easterbrook, writing for the court, “when two federal statutes address the same subject in different ways, the right question is whether one implicitly repeals the other— and repeal by implication is a rare bird indeed.” Id. Implied repeal requires that there be either an irreconcilable conflict between the two enactments or a clearly expressed legislative intent that neither enactment functioned to repeal the other. Id. By way of example, the court examined the Supreme Court’s application of the doctrine to the old and new civil rights statutes. Although the early civil rights statutes, “enacted in 1866 and 1871, and now codified in 42 U.S.C. §§ 1981 to 1985, differ in details both large and small from more recent statutes, such as the Civil Rights Act of 1964 ...,” id. at 732, the Supreme Court held that both the old and the new civil rights acts were easily enforceable without creating conflicting duties or obligations, and that thus the standards"
},
{
"docid": "13983276",
"title": "",
"text": "the claims processing procedures contemplated by the [Bankruptcy] Code and Rules”). Similarly, the FDCPA has been held not to apply to a bankruptcy proof of claim allegedly filed in an excessive amount, because “[t]here is no need to protect debtors who are already under the protection of the bankruptcy court, and there is no need to supplement the remedies afforded by bankruptcy itself.” Simmons v. Roundup Funding, LLC, 622 F.3d 93, 96 (2d Cir. 2010). The defendants’ first ground for dismissal, following the reasoning of these decisions, is that the FDCPA claims set out in the complaint are precluded by the Bankruptcy Code. The Seventh Circuit, however, has taken a narrow approach to statutory preclusion, holding that “[w]hen two federal statutes address the same subject in different ways,” preclusion results only if there is “either irreconcilable conflict between the statutes or a clearly expressed legislative decision that one replace the other.” Randolph v. IMBS, Inc., 368 F.3d 726, 730 (7th Cir.2004); accord, Simon, 732 F.3d at 271-74 (collecting authorities). No statutory provision indicates that FDCPA claims cannot arise from the filing of a claim in bankruptcy, and Randolph specifically holds, 368 F.3d at 730, that “operational differences” between processing of creditor claims under the Bankruptcy Code and under the FDCPA “do not ... add up to irreconcilable conflict.” Randolph instead requires an examination of the grounds for, and scope of, the relief that two statutes accord for the conduct in question, and it holds that as long as the courts can enforce both statutes and the parties can comply with them, the overlap between the statutes is not fatal to either. Id. In Randolph, the conduct complained of was pursuing collection of a discharged debt, as to which the overlap between the Code and the FDCPA was held to present no irreconcilable conflict. Here, the challenged conduct is filing a claim for which the statute of limitations has expired, but the nature of the overlap is the same. The applicable Code provision is § 502(b)(1), which applies to all creditor claims and provides the remedy of disallowance if the claim"
},
{
"docid": "4558822",
"title": "",
"text": "federal, so a preemption analysis could not be applicable. Randolph, 368 F.3d at 730. Said Judge Easterbrook, writing for the court, “when two federal statutes address the same subject in different ways, the right question is whether one implicitly repeals the other— and repeal by implication is a rare bird indeed.” Id. Implied repeal requires that there be either an irreconcilable conflict between the two enactments or a clearly expressed legislative intent that neither enactment functioned to repeal the other. Id. By way of example, the court examined the Supreme Court’s application of the doctrine to the old and new civil rights statutes. Although the early civil rights statutes, “enacted in 1866 and 1871, and now codified in 42 U.S.C. §§ 1981 to 1985, differ in details both large and small from more recent statutes, such as the Civil Rights Act of 1964 ...,” id. at 732, the Supreme Court held that both the old and the new civil rights acts were easily enforceable without creating conflicting duties or obligations, and that thus the standards for implied repeal were not met. Id. Similarly, the FDCPA and the Bankruptcy Code are also compatible because “it is easy to enforce both statutes, and any debt collector can comply with both simultaneously ...” Id. Thus, neither is repealed by implication and courts may enforce both. Id. at 731. The Randolph decision decides this case as well. The same set of facts may give rise to a cause of action for violation of both the FDCPA and section 524(a) of the Bankruptcy Code, and a debtor may successfully enforce both statutes on the same set of facts. Preemption analysis is inapposite, and the elements for finding an implied repeal are not. The motion to dismiss on this ground is denied. The issue of whether there is bankruptcy subject matter jurisdiction to hear the FDCPA claim is a different question altogether. Section 1334 of title 28 defines the ambit of the federal courts’ bankruptcy jurisdiction, which applies to “all civil proceedings arising under title 11, or arising in or related to cases under title 11.”"
},
{
"docid": "8259715",
"title": "",
"text": "Sept.27, 2001) (holding that the Bankruptcy Code precludes a claim brought pursuant to the FDCPA where such violation by a defendant can be remedied by the Bankruptcy Code); Kaiser v. Braje & Nelson, LLP, No. 3:04-CV-405 RM, 2006 WL 1285143 (N.D.Ind. May 5, 2006) (Holding FDCPA claims are pre-empted by the Bankruptcy Code remedies such as the filing of an objection to the claim). In the case of Cooper v. Litton Loan Servicing (In re Cooper), 253 B.R. 286, 291 (Bankr.N.D.Fla.2000), the court held that “the filing of a proof of claim in a bankruptcy proceeding does not trigger the FDCPA, and fails to state a cause of action under the Act. See Baldwin v. McCalla, et al., 1999 WL 284788 (N.D.Ill.1999). The debtor can only attack a proof of claim in the bankruptcy court, and only by using remedies provided in the Bankruptcy Code.” This Court would not be candid in its analysis if it did not acknowledge other courts’ applications of the FDCPA in bankruptcy cases. Other courts have considered whether the FDCPA should be applied with respect to the automatic stay or dischargeability. However, applying the FDCPA to issues involving the automatic stay or dischargeability is different than the issues surrounding the creditor’s right to file a claim in a bankruptcy case. For example, in the case of Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991 (7th Cir.2003), the Seventh Circuit applied the FDCPA when a debt collector sent a post-petition letter to collect a debt discharged in bankruptcy from a former Chapter 13 debtor. The Seventh Circuit again applied the FDCPA in the case of Hyman v. Tate, 362 F.3d 965 (7th Cir.2004), which also involved a letter sent to a Chapter 13 debtor by a collection agency; however, the court ultimately held that the collection agency was protected by bona fide error defense under the FDCPA. In the case of Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir.2004), the court applied the FDCPA to a violation of the automatic stay, noting that Section 362 of the Bankruptcy Code merely overlapped with the FDCPA"
},
{
"docid": "16971410",
"title": "",
"text": "creditor for its attempts to collect a discharged debt in violation of Section 524(a)(the discharge injunction) was subject to dismissal because it “would circumvent the Bankruptcy Code’s remedial scheme.” Id. at 504. The court in Walls, however, did not consider the doctrine of preemption in resolving the case, because as correctly pointed out by the Seventh Circuit Court of Appeals in a case with nearly identical facts, one federal statute does not preempt another. See Randolph v. IMBS, Inc., 368 F.3d 726, 729 (7th Cir.2004), citing Baker v. IBP, Inc., 357 F.3d 685, 688 (7th Cir.2004). Instead, when two federal statutes address the same subject in a different way, the court must determine whether one statute implicitly repeals the other. Id. at 730; Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003). In Walls, the Ninth Circuit Court of Appeals correctly concluded that because the discharge injunction of Section 524(a) is a creation of the Bankruptcy Code specifically enacted to protect discharged debtors from post-discharge collection efforts by creditors whose claims have been discharged, the bankruptcy court and the Bankruptcy Code should dictate the remedy for a violation of that statutory injunction. The court repeated the district court’s conclusion that a determination of the debtor’s FDCPA claim “necessarily entails bankruptcy-laden determinations” such as whether the debtor’s payments were voluntary under Section 524(f), whether she was required to enter into a reaffirmation agreement under Section 524(c), etc. The court also noted that the Bankruptcy Code provides a civil contempt remedy under Section 105 for violation of the discharge injunction and that the existence of this remedy justified dismissal of the debtor’s simultaneous claim under the FDCPA. There is considerable disagreement among courts as to whether the Bankruptcy Code and the FDCPA can peaceably coexist without one treading unfairly on the other’s objectives. The Ninth Circuit Court of Appeals in Walls held that the FDCPA should give way to the Bankruptcy Code remedies in the context of a violation of the discharge injunction. The Seventh Circuit Court of Appeals in Randolph held just the opposite. In Randolph,"
},
{
"docid": "2214166",
"title": "",
"text": "action will not suffice. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. DISCUSSION A. The FDCPA Has Not Been Impliedly Repealed by the Bankruptcy Code As a threshold matter, this court must determine whether the FDCPA and the Bankruptcy Code co-exist. The Sixth Circuit has yet to consider whether the FDCPA was impliedly repealed by the Bankruptcy Code. Other circuit courts of appeals have come to conflicting conclusions. Compare Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 510-11 (9th Cir.2002) (Bankruptcy Code precludes relief under FDCPA) with Randolph v. IMBS, Inc., 368 F.3d 726, 732 (7th Cir. 2004) (Bankruptcy Code not impliedly repealed by FDCPA); Simon v. FIA Card Servs., N.A., 732 F.3d 259, 271-78 (3d Cir. 2013) (same and collecting cases); see also Simmons v. Roundup Funding, LLC, 622 F.3d 93, 95-96 (2d Cir.2010) (holding that filing of inflated proof of claim cannot form basis for FDCPA violations because debtor already receives protection from Bankruptcy Code but declining to address larger issue of whether all claims under FDCPA precluded by Bankruptcy Code). In Randolph the Seventh Circuit considered the relationship between the automatic stay and the FDCPA. Randolph, 368 F.3d at 730. According' to the Seventh Circuit, although section 362 of the Bankruptcy Code overlaps with certain provisions of the FDCPA, it is possible for parties to comply with both statutes. Id. Relying on a table in its decision that compares and contrasts violations under the FDCPA and the Bankruptcy Code, the Seventh Circuit noted that' “[i]t would be better to recognize that the statutes overlap, each with coverage that the other lacks — the [Bankruptcy] Code covers all persons, not just debt collectors, and all activities in bankruptcy; the FDCPA covers all activities by debt collectors, not just those affecting debtors in bankruptcy. Overlapping statutes do not repeal one another by implication; as long as people can comply with both, then courts can enforce both.” Id. at 730-31. The Seventh Circuit also rejected the decision of the Ninth Circuit in Walls, which adopted the opposite view from Randolph, without substantive analysis. Id. In Walls the Ninth Circuit"
},
{
"docid": "8259716",
"title": "",
"text": "should be applied with respect to the automatic stay or dischargeability. However, applying the FDCPA to issues involving the automatic stay or dischargeability is different than the issues surrounding the creditor’s right to file a claim in a bankruptcy case. For example, in the case of Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991 (7th Cir.2003), the Seventh Circuit applied the FDCPA when a debt collector sent a post-petition letter to collect a debt discharged in bankruptcy from a former Chapter 13 debtor. The Seventh Circuit again applied the FDCPA in the case of Hyman v. Tate, 362 F.3d 965 (7th Cir.2004), which also involved a letter sent to a Chapter 13 debtor by a collection agency; however, the court ultimately held that the collection agency was protected by bona fide error defense under the FDCPA. In the case of Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir.2004), the court applied the FDCPA to a violation of the automatic stay, noting that Section 362 of the Bankruptcy Code merely overlapped with the FDCPA and did not pre-empt it. However, the facts of this case can be distinguished from cases involving the applicability of the FDCPA to violations of the automatic stay and dischargeability issues. In the cases of Turner, Hyman, and Randolph, the collection agencies sent letters that violated both the Bankruptcy Code and the FDCPA. Here, Asset did not engage in any wrongful conduct by filing a proof of claim. To hold otherwise would undermine the rights of creditors in the bankruptcy process. The creditor’s right to file a claim is not impacted by whether the statute of limitations had run, as the debtor must raise the statute of limitations issue as an affirmative defense, and even then the court still must determine whether it has tolled and run. The debtor does not need the FDCPA to protect itself from improper claims, as the Bankruptcy Code allows the debtor to file an objection. If this Court was to apply the FDCPA in this instance, debtors would be encouraged to file adversary proceedings instead of simply an objection"
},
{
"docid": "18488974",
"title": "",
"text": "in a Bankruptcy Court”). See also In re Nelson, 234 B.R. 528, 534 (Bankr.M.D.Fla. 1999) (“The contention that the exercise of a mandated statutory right under the Bankruptcy Code [such as the filing of a nondischargeability complaint] is a violation of the automatic stay is almost as absurd as a contention that any creditor who files a proof of claim in bankruptcy violated the automatic stay”). The complaint’s fourth claim for relief will be dismissed for failing to state a claim upon which relief can be granted. 5. The Bankruptcy Court Claims Process Does Not Supplant the FDCPA The debtors allege in their fifth claim for relief that B-Real’s actions were false, deceptive, misleading, unfair and unconscionable, and violated the FDCPA, 15 U.S.C. § 1692 et seq. More specifically, the debtors claim that B-Real’s practice of filing prescribed claims without proper supporting documentation violates FDCPA sections 1692d, 1692e and 1692f. B-Real moves to dismiss the fifth claim on the grounds that the Bankruptcy Code supercedes the FDCPA and the debtors’ remedies lie only in the Bankruptcy Code. The Fifth Circuit has not ruled on this specific issue, and the only two circuit courts of appeal that have considered it disagree on whether actions under both the Bankruptcy Code and the FDCPA can co-exist. The Ninth Circuit held in Walls v. Wells Fargo, 276 F.3d 502 (9th Cir.2002) that a debtor may not maintain simultaneous actions under both 11 U.S.C. § 105 and the FDCPA. The court wrote that the debt- or’s FDCPA claim was actually an action for sanctions under Bankruptcy Code § 105 for the creditor’s alleged violation of the 11 U.S.C. § 524 discharge injunction. Id. at 510. As a result, the debtor/plaintiffs sole remedy was under the Bankruptcy Code, and the debtor could not “circumvent the remedial scheme of the Code” by suing the creditor under the FDCPA. Id. A different analysis in Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir.2004) led the court to conclude that a debtor could make an FDCPA claim for a creditor’s alleged violations of the discharge injunction. The Seventh Circuit"
},
{
"docid": "4558820",
"title": "",
"text": "defendants argue that the plaintiff failed to list the Baker Debt in his bankruptcy. Thus, the Baker Debt was not discharged. They add that the plaintiffs bankruptcy was a no-asset case, so that there was never a deadline to file a claim, further supporting the contention that the claim cannot have been discharged. In all events, there can be no right to recovery in this court for a violation of the discharge injunction if the defendants have already vacated the judgment (as took place on March 7, 2008). The plaintiff disagrees, of course, on all counts. Analysis A. The FDCPA and 11 U.S.C. § 524(a) The defendants claim that the FDCPA cause of action cannot be brought in federal court under the bankruptcy jurisdiction statute. Even if there were jurisdiction, they claim that a debtor must choose between an action under the FDCPA and an action under section 524(a) of the Bankruptcy Code — the debtor cannot have both remedies, say the defendants. For the reasons articulated below, the court holds that claims alleging violations of the FDCPA and 11 U.S.C. § 524(a) can in fact co-exist, even when they are based upon the same set of facts. However, the court also holds that it does not have subject matter jurisdiction to entertain the. FDCPA cause of action asserted, at least in this case. Regarding the first of these two issues, there is a split in the circuits. The Ninth Circuit in Walls v. Wells Fargo Bank, N.A., 276 F.3d 502 (9th Cir.2002) found that the two causes of action cannot co-exist. The Seventh Circuit, in Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir.2004), ruled to the contrary, finding that violation of the discharge injunction could form a basis for recovery under the FDCPA. The Randolph approach is the more persuasive, in this court’s view. There, the Seventh Circuit explained that the line of authority that suggested the two causes of action are incompatible were built on a false premise — to wit, that the Bankruptcy Code “pre-empted” the FDCPA. The court noted (somewhat dryly) that both statutes are"
},
{
"docid": "10285278",
"title": "",
"text": "The Second and the Ninth Circuits have broadly ruled that it does. Simmons v. Roundup Funding, LLC, 622 F.3d 93, 96 (2nd Cir.2010) (holding that the Bankruptcy Code provides exclusive remedies for inflated proofs of claim, dismissing an FDCPA claim); Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 510 (9th Cir.2002) (holding that § 524(a) of the Bankruptcy Code provided the exclusive remedy for violation of the discharge injunction, dismissing an FDCPA claim). The Third ' and the Seventh Circuits have ruled to the contrary, finding that the FDCPA and the Bankruptcy Code may peacefully co-exist, allowing FDCPA claims in cases involving debtors that were in bankruptcy. Simon v. FIA Card Services, N.A., 732 F.3d 259, 271 (3d Cir.2013) (holding that debt collectors’ communication with debtors in bankruptcy violated the FDCPA and that an FDCPA remedy was not precluded by the Bankruptcy Code); Randolph v. IMBS, Inc., 368 F.3d 726, 732 (7th Cir.2004) (holding that the Bankruptcy Code does not work an implied repeal of the FDCPA in action involving demand letters sent in violation of the automatic stay). The Seventh Circuit in Randolph reversed the district court’s holding that § 362(h) of the Bankruptcy Code “preempts” § 1692e(2)(A) of the FDCPA. “When two federal statutes address the same subject in different ways, the right question is whether one implicitly repeals the other—and repeal by implication is a rare bird indeed.” Randolph, 368 F.3d at 730. The court noted that the two statutes “overlap.” Id. “It is easy to enforce both statutes, and any debt collector can comply with both simultaneously.” Id. In the case at bar, the Defendants can easily comply with both statutes simultaneously. “The Bankruptcy Code of 1986 does not work an implied repeal of the FDCPA, any more than the latter Act implicitly repeals itself.” Id. at 732. The implicit repeal of one federal statute by another is exceedingly rare. “The conclusion that two statutes conflict ... is one that courts must not reach lightly. If any interpretation permits both statutes to stand, the court must adopt that interpretation, ‘absent a clearly expressed congressional intention"
}
] |
446925 | reimbursement to another person pursuant to a legal judgment or settlement are recoverable only under § 113(f).” Id. The Supreme Court has thus left some aspects of this issue up in the air. We recognize that in the course of NCR’s contribution actions, the district court here has concluded that section 107(a) is unavailable to NCR, for the simple reason that section 113(f) appears to be available: it thought that these were mutually exclusive remedies. But the Supreme Court, in the passage just quoted, intimated that the two statutes may not always be mutually exclusive. The Second Circuit has concluded that parties that incurred costs following a consent order may seek cost recovery under section 107(a). REDACTED The Eleventh and Eighth Circuits appear to have come out the other way. Solutia, Inc. v. McWane, Inc., 672 F.3d 1230 (11th Cir.2012); Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 603 (8th Cir.2011). All of this is too uncertain to drive the result in the present case. If and when the time comes, NCR will be free to explore whatever possibilities may still be available to it for either contribution or cost recovery. What is available will of course depend in part on any appeal that it might take from the district court’s order on this subject — a topic that is not before us at this time. For now, we conclude that it is an open question | [
{
"docid": "8291020",
"title": "",
"text": "not limited solely to “innocent” parties, see id., section 107(a) does not specify that only parties who “voluntarily” remediate a site have a cause of action. Section 107 “permits a PRP to recover only the costs it has ‘incurred’ in cleaning up a site.” Id. at 2338 (citing 42 U.S.C. § 9607(a)(4)(B)). Section 107(a) “permits cost recovery (as distinct from contribution) by a private party that has itself incurred cleanup costs.” Id. A party who “pays to satisfy a settlement agreement or a court judgment,” however, “does not incur its own costs of response. Rather, it reimburses other parties for costs that those parties incurred.” Id; see also Kotrous v. Goss-Jewett Co. of N. Cal., 523 F.3d 924, 934 (9th Cir.2008) (“[A] PRP who has not been subject to a § 106 or a § 107 action ... is not entitled to seek contribution under § 113. Instead, he should proceed under § 107 for cost recovery”). Here, Grace seeks to recover costs for remediation it performed itself; it does not seek to recoup expenses incurred in satisfying a settlement agreement or a court judgment. We conclude that Grace may seek recovery for incurred response costs under section 107(a). Our holding that Grace incurred response costs even though it conducted the remediation pursuant to a consent order is consistent with prior decisions that have allowed potentially responsible parties to seek cost recovery under section 107(a) despite government involvement and oversight. In Schaefer v. Town of Victor, the plaintiff underwent eight years of enforcement proceedings from New York’s DEC with respect to a contaminated landfill and had entered into two consent orders with the DEC regarding the landfill’s closure and remediation. 457 F.3d 188, 191-92 (2d Cir.2006). The first consent order required investigation of the possible environmental threat posed by the landfill; two years later, the second consent order required closure. The Schaefer Court held the plaintiff could bring a cause of action under section 107 because the plaintiff had begun to incur some response costs before the final consent order requiring closure of the site. Id. at 201-02 (concluding that"
}
] | [
{
"docid": "17105897",
"title": "",
"text": "a contribution claim is available. See Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1236-37 (11th Cir.2012); Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 603 (8th Cir.2011); Lyondell Chem. Co. v. Occidental Chem. Corp., 608 F.3d 284, 291 n. 19 (5th Cir.2010) (acknowledging, and not disturbing, district court’s implicit decision that plaintiff could not pursue both remedies); Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir.2010); Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 128 (2d Cir.2010); ITT Indus., Inc. v. BorgWamer, Inc., 506 F.3d 452, 458 (6th Cir.2007). Two justifications are usually given for reaching that conclusion. First, courts have noted that, despite its passing acknowledgment of a possible overlap in Atlantic Research, the Supreme Court has repeatedly emphasized the procedural “distinctness” of the CERCLA rights of action. See, e.g., 551 U.S. at 138, 127 S.Ct. 2331; Niagara Mohawk, 596 F.3d at 128; ITT Indus., 506 F.3d at 458. Second, some courts have concluded that permitting a party who has already resolved his own liability through a settlement to pursue a § 9607(a)(4)(B) action would allow him to exploit CERCLA’s “contribution bar” provision to shift full liability onto the target of his suit, a result antithetical to the purpose of the statute. See, e.g., Solutia, 672 F.3d at 1237; Agere Sys., Inc., 602 F.3d at 228-229. The “contribution bar” argument, although common in the case law, is based on a faulty premise. The argument is that a § 9607(a) cost recovery suit imposes joint and several liability on its target, whereas a contribution defendant only faces equitable apportionment. At the same time, pursuant to § 9613(f)(2), a party who has “resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.” Several courts have concluded that allowing a party who has resolved its liability through settlement — and who thus meets the prerequisites for a § 9613(f)(3)(B) contribution action, as well as for protection under § 9613(f)(2) — to"
},
{
"docid": "16888524",
"title": "",
"text": "liability determination against it even if it wants to proceed by that route, because that statute creates a right to contribution, and contribution exists only among joint tortfeasors liable for the same harm. See Restatement (Second) of Torts § 886A. See also Cooper Indus., 543 U.S. at 166-68, 125 S.Ct. 577 (unavailability of section 113(f)); Atl. Research Corp., 551 U.S. at 135-36, 127 S.Ct. 2331 (availability of section 107(a)). Thus, although a strict reading of the phrase “necessary costs of response” in section 107(a) might suggest that parties who pay pursuant to an enforcement action might be able to sue under section 107(a), this court — like our sister circuits — restricts plaintiffs to section 113 contribution actions when they are available. Bernstein, 733 F.3d at 206. See also Hobart Corp. v. Waste Mgmt. of Ohio, Inc., Nos. 13-3273, 13-3276, 2014 WL 3397147 at *7 (6th Cir. July 14, 2014) (agreeing with Bernstein that sections 107(a) and 113(f) provide mutually exclusive remedies). B The question whether NCR may sue under section 107(a) is controlled by our decision in Bernstein. In that case we held that a settlement with the EPA “resolves” a party’s liability when the agreement, by its own terms, releases a party from CERCLA liability in an enforcement action. Bernstein, 733 F.3d at 204-15. We contrasted two Administrative Orders of Consent between the PRP and the EPA, both of which contained explicit language stating that the PRP would not be protected from suit by the EPA until after it had completed its cleanup obligations under the orders. The earlier order dealt with a project on which the PRP had completed work. The PRP was therefore limited to a contribution action under section 113(f) to recover its costs. The later order stipulated that “nothing in this Order constitutes a satisfaction or release from any claim or cause of action against the Respondents,” and that “[tjhese covenants [not to sue] are conditioned upon the complete and satisfactory performance by Respondents of their obligations under this Order.” Id. at 203, 207. The agreement memorialized in that order disclaimed any admission of"
},
{
"docid": "16888520",
"title": "",
"text": "contribution for the expenses they incurred as part of the Lower Fox River cleanup. It further ruled that the recycling mills should receive contribution from NCR for their costs, including those incurred in the form of “natural resources damages.” Between the appeal and the cross-appeal, we have a considerable array of issues before us. They include the following: (1) whether NCR (and Appvion, which stands in the same position as NCR for this purpose, and so unless otherwise required we use “NCR” to refer to both) are entitled to recover any portion of the cost of clean-up under either section 107 or 113 of CERCLA, 42 U.S.C. §§ 9607, 9613; (2) whether NCR has any arranger liability; (3) whether the district court erred by awarding costs to Glatfelter without offsetting its insurance recoveries; (4) whether NCR is hable for natural resource damages; (5) whether the court erroneously dismissed Glatfelter’s claims based upon discharges at Portage, Wisconsin; and (6) whether the district court wrongly dismissed Glatfelter’s common-law counterclaims as preempted. We address the issues in that order. II. Cost Recovery or Contribution We begin with NCR’s assertion that it should not be required to proceed by way of a contribution action under section 113(f) at all, but instead should be able to sue the defendant mills under the more plaintiff-friendly provision for cost recovery found at CERCLA § 107(a), 42 U.S.C. § 9607(a). We review this question of statutory interpretation de novo. Storie v. Randy’s Auto Sales, LLC, 589 F.3d 873, 876 (7th Cir.2009). A Defining the relation between cost-recovery suits under section 107 and contribution actions under section 113 has proven vexing for courts. Section 107(a) is meant to support a claim for parties to recover costs incurred during a self-initiated environmental cleanup, while section 113(f) creates a right to contribution for parties already subject to liability in either a section 107 action or an action by the government under CERCLA § 106, 42 U.S.C. § 9606. See United States v. Atlantic Research Corp., 551 U.S. 128, 138-39, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007). Proceeding by way of section"
},
{
"docid": "17105909",
"title": "",
"text": "The former is a typical cost recovery claim, whereas the latter is a typical contribution claim under § 9613(f)(1). Id. Under the circumstances as hypothetically defined, the Court saw no room for choosing between the two: “[B]y reimbursing costs paid to other parties, the PRP has not incurred its own costs of response and therefore cannot recover under § 107(a). As a result, though eligible to seek contribution under § 113(f)(1), the PRP cannot simultaneously seek to recover the same expenses under § 107(a).” Id. The Court concluded that the government’s cause-shopping worries were thus unfounded. But before moving on, the Court recognized the limitations of its own conceptual illustration in a footnote, which we have quoted once already: We do not suggest that §§ 107(a)(4)(B) and 113(f) have no overlap at all. Key Tronic Corp. v. United States, 511 U.S. 809, 816, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994) (stating the statutes provide “similar and somewhat overlapping remedies]”). For instance, we recognize that a PRP may sustain expenses pursuant to a consent decree following a suit under § 106 or § 107(a). See, e.g., United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F.3d 96, 97 (1st Cir.1994). In such a case, the PRP does not incur costs voluntarily but does not reimburse the costs of another party. We do not decide whether these compelled costs of response are recoverable under § 113(f), § 107(a), or both. For our purposes, it suffices to demonstrate that costs incurred voluntarily are recoverable only by way of § 107(a)(4)(B), and costs of reimbursement to another person pursuant to a legal judgment or settlement are recoverable only under § 113(f). Thus, at a minimum, neither remedy swallows the other, contrary to the Government’s argument. 551 U.S. at 139 n. 6,127 S.Ct. 2331. The Bankerts conclude, based on the quoted footnote, that only parties who voluntarily incur response costs can bring an action for cost recovery under § 9607(a), and that parties who are “compelled” to incur response costs because of an enforcement action or a government settlement must proceed under § 9613(f) instead. But"
},
{
"docid": "16888523",
"title": "",
"text": "party must proceed under section 107(a) or 113(f) depends on the procedural posture of the claim. Atl. Research Corp., 551 U.S. at 139-40, 127 S.Ct. 2331 (citing Consol. Edison Co. of N.Y. v. UGI Utils., Inc., 423 F.3d 90, 99 (2d Cir.2005)). If a party already has been subjected to an action under section 106 or 107, or has “resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement,” it must proceed under section 113(f). 42 U.S.C. §§ 9613(f)(1), (f)(3)(B); see Bernstein v. Bankert, 733 F.3d 190, 201-02 (7th Cir. 2012). Conversely, a party that has not been subjected to an enforcement or liability action, and that is not party to a settlement, may proceed under section 107(a). See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 166-68, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004). Section 113(f) is closed to a litigant without a preexisting or pending liability determination against it even if it wants to proceed by that route, because that statute creates a right to contribution, and contribution exists only among joint tortfeasors liable for the same harm. See Restatement (Second) of Torts § 886A. See also Cooper Indus., 543 U.S. at 166-68, 125 S.Ct. 577 (unavailability of section 113(f)); Atl. Research Corp., 551 U.S. at 135-36, 127 S.Ct. 2331 (availability of section 107(a)). Thus, although a strict reading of the phrase “necessary costs of response” in section 107(a) might suggest that parties who pay pursuant to an enforcement action might be able to sue under section 107(a), this court — like our sister circuits — restricts plaintiffs to section 113 contribution actions when they are available. Bernstein, 733 F.3d at 206. See also Hobart Corp. v. Waste Mgmt. of Ohio, Inc., Nos. 13-3273, 13-3276, 2014 WL 3397147 at *7 (6th Cir. July 14, 2014) (agreeing with Bernstein that sections 107(a) and 113(f) provide mutually exclusive remedies). B The question whether NCR may sue under section 107(a) is controlled by"
},
{
"docid": "16888528",
"title": "",
"text": "the government through the consent order — and thus is limited to section 113(f) — is a matter of contract interpretation. On that score, the consent order here diverges in every meaningful way from the one in Bernstein that left section 107(a) available. In Bernstein, the covenants not to sue were “conditioned upon the complete and satisfactory performance” of the PRP’s obligations. 733 F.3d at 203. In contrast, under the 2004 order here both the EPA and WDNR “eovenant[ed] not to sue or to take administrative action against Respondents [under CERCLA or state law] for performance of the work.” It explicitly provided that “[t]hese covenants not to sue shall take effect upon the Effective Date ” (emphasis added); in Bernstein, the covenants did not take effect until completion of the work. To be sure, the NCR order also has language conditioning the covenants on “satisfactory performance” of NCR’s obligations. But this means only that the federal or state government could sue NCR if it breaches the agreement — a standard arrangement that is consistent with the fact that neither the EPA nor Wisconsin could sue NCR if it complied with its obligations. The agreement resolved NCR’s liability, and so the district court correctly held that it limited NCR to proceeding under section 113(f). To hold otherwise would mean that no consent order could resolve a party’s liability until the work under it was complete. Such a rule would be contrary both to the analysis in Bernstein and to common sense. C Appvion finds itself in a materially different position from NCR when it comes to the choice between cost recovery and contribution. In fact, it appears to be in an unusual, possibly unique, position among parties incurring costs under CERCLA: it was initially identified as a PRP by the government and paid response costs in that capacity, but later it was held to fall outside of CERCLA’s statutory grounds for liability. It is now on the hook for response costs only as NCR’s indemnitor pursuant to an agreement signed when the companies split up. It is seeking the costs of"
},
{
"docid": "16888521",
"title": "",
"text": "order. II. Cost Recovery or Contribution We begin with NCR’s assertion that it should not be required to proceed by way of a contribution action under section 113(f) at all, but instead should be able to sue the defendant mills under the more plaintiff-friendly provision for cost recovery found at CERCLA § 107(a), 42 U.S.C. § 9607(a). We review this question of statutory interpretation de novo. Storie v. Randy’s Auto Sales, LLC, 589 F.3d 873, 876 (7th Cir.2009). A Defining the relation between cost-recovery suits under section 107 and contribution actions under section 113 has proven vexing for courts. Section 107(a) is meant to support a claim for parties to recover costs incurred during a self-initiated environmental cleanup, while section 113(f) creates a right to contribution for parties already subject to liability in either a section 107 action or an action by the government under CERCLA § 106, 42 U.S.C. § 9606. See United States v. Atlantic Research Corp., 551 U.S. 128, 138-39, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007). Proceeding by way of section 107(a) holds advantages for a plaintiff insofar as it can recover “any ... necessary costs of response incurred,” and defendants can assert only the statutory defenses enumerated in section 107(b), such as acts of God, acts of war, and third-party omissions. See 42 U.S.C. § 9607(a)(4)(B). See also California v. Neville Chem. Co., 358 F.3d 661, 672 (9th Cir.2004). Equity plays no role in a section 107(a) action, in contrast to a section 113(f) action, where the entire allocation of costs is equitable, and even a defendant who concedes statutory liability may argue that it should bear none of the costs of response. The defendant in a section 107(a) action can always bring a section 113(f) counterclaim if the plaintiff is a PRP, but the burden of proof would then be on the counterclaiming defendant to demonstrate an entitlement to contribution. See Atl. Research Corp., 551 U.S. at 140, 127 S.Ct. 2331 (explaining availability of 113(f) counterclaim); Goodrich Corp. v. Town of Middlebury, 311 F.3d 154, 168 (2d Cir.2002) (discussing burden of proof). Whether a"
},
{
"docid": "14493356",
"title": "",
"text": "omitted). If a party subject to a consent decree could simply repackage its § 113(f) claim for contribution as one for recovery under § 107(a), then the structure of CERCLA remedies would be completely undermined. For example, parties could circumvent the different statutes of limitations that attach to § 113(f) contribution claims and § 107(a) recovery claims. See 42 U.S.C. § 9613(g)(2)-(3). Further, parties, like Solutia & Pharmacia, could thwart the contribution protection afforded to parties that settle their liability with the EPA, like the Settling Defendants. See 42 U.S.C. § 9613(f)(2). This, in turn, would destroy CERCLA’s statutorily-created settlement incentive. Finally, to allow a § 107(a) claim here would allow parties, like Solutia & Pharmacia, to im pose joint and several liability on Defendants, and other similarly situated parties. Defendants would then be barred from asserting any § 113(f) counterclaims, because Solutia & Pharmacia have already entered into a judicially approved settlement with the EPA. See 42 U.S.C. § 9613(f)(2); Agere Sys., 602 F.3d at 228. For these reasons, we agree with our sister circuits that we must deny the availability of a § 107(a) remedy under these circumstances in order to “[t]o ensure the continued vitality of the precise and limited right to contribution.” Morrison Enter., 638 F.3d at 603; accord Niagara Mohawk Power, 596 F.3d at 128 (“[P]roceed[ing] under § 107(a) would ... abrogate the requirements Congress placed on contribution claims under § 113.”). IV. SCOPE OF PARTIAL CONSENT DECREE Solutia & Pharmacia argue that, even if this Court finds § 113(f) to be their exclusive remedy, they do not have a § 113(f) contribution action for the Anniston Lead Site, because they were not obligated to clean the Site under the Partial Consent Decree (PCD). Therefore, they claim entitlement to bring § 107(a) claims for cleanup costs related to the Anniston Lead Site. We review the scope and meaning of a consent decree de novo. Reynolds v. Roberts, 202 F.3d 1303, 1312 (11th Cir. 2000). The PCD incorporates a number of documents and schedules to clarify its purpose and scope. This includes “all work and other"
},
{
"docid": "17105896",
"title": "",
"text": "the briefs: are there any circumstances under which a plaintiff may bring both a cost recovery and a contribution claim under CERCLA? The Supreme Court left that possibility open in Atlantic Research: We do not suggest that §§ 107(a)(4)(B) and 113(f) have no overlap at all. Key Tronic Corp. v. United States, 511 U.S. 809, 816, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994) (stating the statutes provide “similar and somewhat overlapping remedies]”). For instance, we recognize that a PRP may sustain expenses pursuant to a consent decree following a suit under § 106 or § 107(a). See, e.g., United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F.3d 96, 97 (1st Cir.1994). In such a case, the PRP does not incur costs voluntarily but does not reimburse the costs of another party. We do not decide whether these compelled costs of response are recoverable under § 113(f), § 107(a), or both. 551 U.S. at 139 n. 6,127 S.Ct. 2331. Most circuits, after Atlantic Research, have not allowed a plaintiff to pursue a cost recovery claim when a contribution claim is available. See Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1236-37 (11th Cir.2012); Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 603 (8th Cir.2011); Lyondell Chem. Co. v. Occidental Chem. Corp., 608 F.3d 284, 291 n. 19 (5th Cir.2010) (acknowledging, and not disturbing, district court’s implicit decision that plaintiff could not pursue both remedies); Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir.2010); Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 128 (2d Cir.2010); ITT Indus., Inc. v. BorgWamer, Inc., 506 F.3d 452, 458 (6th Cir.2007). Two justifications are usually given for reaching that conclusion. First, courts have noted that, despite its passing acknowledgment of a possible overlap in Atlantic Research, the Supreme Court has repeatedly emphasized the procedural “distinctness” of the CERCLA rights of action. See, e.g., 551 U.S. at 138, 127 S.Ct. 2331; Niagara Mohawk, 596 F.3d at 128; ITT Indus., 506 F.3d at 458. Second, some courts have concluded that permitting a party who has already resolved his own"
},
{
"docid": "17105910",
"title": "",
"text": "a suit under § 106 or § 107(a). See, e.g., United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F.3d 96, 97 (1st Cir.1994). In such a case, the PRP does not incur costs voluntarily but does not reimburse the costs of another party. We do not decide whether these compelled costs of response are recoverable under § 113(f), § 107(a), or both. For our purposes, it suffices to demonstrate that costs incurred voluntarily are recoverable only by way of § 107(a)(4)(B), and costs of reimbursement to another person pursuant to a legal judgment or settlement are recoverable only under § 113(f). Thus, at a minimum, neither remedy swallows the other, contrary to the Government’s argument. 551 U.S. at 139 n. 6,127 S.Ct. 2331. The Bankerts conclude, based on the quoted footnote, that only parties who voluntarily incur response costs can bring an action for cost recovery under § 9607(a), and that parties who are “compelled” to incur response costs because of an enforcement action or a government settlement must proceed under § 9613(f) instead. But the Court said “costs incurred voluntarily are recoverable only by way of [§ 9607(a)(4)(B).]” Id. (emphasis added). That is not the same as saying that only voluntarily incurred costs are recoverable by way of § 9607(a)(4)(B). The latter implies the exclusion of costs of any other type; the former does not. The Supreme Court said, and meant, the former. In fact, the Court explicitly left open the possibility that parties who were “compelled” to incur costs — including parties who incurred costs subsequent to government settlements — might proceed under § 9607(a) nonetheless. Id. The second problem with the Bankerts’ position is that they have produced no legal authority in support of it. The cases they cite which did hold that PRPs who incurred cleanup costs under government settlements were bound to pursue a contribution claim did so because the statutory triggers for contribution claims were met, not because the costs were compelled as opposed to voluntary. See Niagara Mohawk, 596 F.3d 112 (holding that the plaintiff had a contribution claim under § 9613(f)(3)(B), because"
},
{
"docid": "16888589",
"title": "",
"text": "liable under section 9607(a).... ” CERCLA § 113(f), 42 U.S.C. § 9613(f). Section 107(a)(4)(A)-(D) explains the types of damages for which a PRP may be liable, and section 113(f) does not discriminate among the types of damages eligible for contribution. The district court correctly limited the “direct causation” requirement of section 107(a)(4)(C) to the first part of a two-step inquiry: first, determine whether a party is liable for natural resource damages under section 107(a), and second, determine whether it is equitably entitled to contribution for those costs from another party liable under section 107(a). NCR’s argument might have merit if the question were whether NCR should be held directly liable to the government for natural resource damages under section 107(a). Indeed, the two cases to which NCR refers demonstrate that the causation requirement is all about whether a party is liable for natural resource damages under section 107; neither mentions section 113(f). See Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1153-54 & n. 7 (1st Cir.1989); Idaho v. Bunker Hill Co., 635 F.Supp. 665, 674-75 (D.Idaho 1986). Here, the causation requirement of section 107(a)(4)(C) was satisfied when the defendants were found liable for natural resource damages. As liable parties under section 107, they could then seek contribution from NCR, a fellow PRP. This is enough to demonstrate that the district court was correct when it held that the defendants could seek contribution for natural resource damages from NCR. NCR also argues that the district court erred by failing to give it the chance to present the “defense” that the defendants cannot “recover” for natural resource damages that occurred prior to CERCLA’s enactment in December 1980. See 42 U.S.C. § 9607(f)(1). Again, though, NCR mischaracterizes the defendants’ position as “recovery,” when in fact it is the government that has recovered against the defendants. The defendants merely present claims for contribution. Under the statute, the government could not have recovered for natural resource damages incurred before December 1980, so the defendants have no way to ask for contribution for those costs either — they cannot seek contribution for"
},
{
"docid": "14493355",
"title": "",
"text": "In addition, this is not the first time that the Eleventh Circuit has encountered consent decrees in the context of CERCLA. In fact, this Court has held that a consent decree gives a party a right to contribution under § 113(f) in Atlanta Gas Light Co. v. UGI Utilities, Inc., 463 F.3d 1201, 1203-04 (11th Cir.2006). In accordance with our precedent, we conclude that Solutia & Pharmacia are entitled to a contribution claim under § 113(f) of CERCLA. Now we must decide whether a party who has a claim under § 113(f) for cleanup costs may also have a claim under § 107(a) for those same costs. Solutia & Pharmacia argue that there is no language in either § 107 or § 113 to suggest that § 107(a) and § 113(f) are mutually exclusive remedies. Be that as it may, CERCLA must “be read as a whole,” Atl. Research, 551 U.S. at 135, 127 S.Ct. at 2336 (quotation marks omitted), such that its remedies remain “clearly distinct.” Id. at 138,127 S.Ct. at 2337 (quotation marks omitted). If a party subject to a consent decree could simply repackage its § 113(f) claim for contribution as one for recovery under § 107(a), then the structure of CERCLA remedies would be completely undermined. For example, parties could circumvent the different statutes of limitations that attach to § 113(f) contribution claims and § 107(a) recovery claims. See 42 U.S.C. § 9613(g)(2)-(3). Further, parties, like Solutia & Pharmacia, could thwart the contribution protection afforded to parties that settle their liability with the EPA, like the Settling Defendants. See 42 U.S.C. § 9613(f)(2). This, in turn, would destroy CERCLA’s statutorily-created settlement incentive. Finally, to allow a § 107(a) claim here would allow parties, like Solutia & Pharmacia, to im pose joint and several liability on Defendants, and other similarly situated parties. Defendants would then be barred from asserting any § 113(f) counterclaims, because Solutia & Pharmacia have already entered into a judicially approved settlement with the EPA. See 42 U.S.C. § 9613(f)(2); Agere Sys., 602 F.3d at 228. For these reasons, we agree with our sister"
},
{
"docid": "16888526",
"title": "",
"text": "liability by the PRP, Id. at 204, and the terms of the agreement gave the EPA the right to sue up until the point when the PRP completed its obligations. The PRP’s liability therefore could not be considered “resolved” by the order for CERCLA purposes. This meant that the order could form the basis of a section 107(a) suit because the PRP was still in the process of complying with it. NCR’s response costs at the River site arose under three orders: a consent decree following a 2001 suit by the EPA and WDNR, an Administrative Order of Consent for design work in 2004, and a Unilateral Administrative Order for remedial work in 2007. The company concedes that its costs under the 2001 consent decree must be recovered under section 113(f), if at all. It continues, however, to assert its ability to sue the recycling mills under section 107(a) for costs incurred pursuant to the 2004 and 2007 orders. Its argument with respect to the 2007 order is easily dispatched. The government filed a lawsuit to enforce that order in 2010. Under CERCLA’s express terms, a party may seek contribution from any other PRP “during or following any civil action under section 9606 [CERCLA § 106] of this title or under section 9607(a) [CERCLA § 107(a)] of this title.” CERCLA § 113(f)(1); 42 U.S.C. § 9613(f)(1) (emphasis added). Thus, a section 113(f) action is available to NCR for the costs incurred under the 2007 order. This means that section 107(a) is not available. See Bernstein, 733 F.3d at 206. We are unpersuaded by NCR’s contention that the costs it incurred under the order before the action was filed in October 2010 were “voluntary,” and thus not part of the costs recoverable under section 113(f). Such slicing and dicing of costs incurred under the same administrative order makes little sense when a party’s liability for all of those costs will ultimately be determined in the enforcement action. As for the 2004 Administrative Order of Consent, our analysis again is guided by Bernstein. The question whether NCR has resolved its liability to"
},
{
"docid": "14493354",
"title": "",
"text": "presented here — whether a party who incurs direct cleanup costs pursuant to a consent decree following a CERCLA lawsuit under § 106 or § 107 may bring an action to recover those costs under § 107(a). 551 U.S. at 139 n. 6, 127 S.Ct. at 2338 n. 6. However, we are not drawing on a completely blank slate. Since Atlantic Research was decided, other circuits have held that § 113(f) provides the “exclusive remedy for a liable party compelled to incur response costs pursuant to an administrative or judicially approved settlement under §§ 106 or 107,” including a consent decree. Morrison Enter., LLC v. Dravo Corp., 638 F.3d 594, 603 (8th Cir. 2011); accord Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir.2010) (holding that parties subject to a consent decree cannot bring a claim under § 107(a)); Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 128 (2d Cir.2010) (holding that parties that settle CERCLA liability with government agencies can only bring § 113(f) contribution claims). In addition, this is not the first time that the Eleventh Circuit has encountered consent decrees in the context of CERCLA. In fact, this Court has held that a consent decree gives a party a right to contribution under § 113(f) in Atlanta Gas Light Co. v. UGI Utilities, Inc., 463 F.3d 1201, 1203-04 (11th Cir.2006). In accordance with our precedent, we conclude that Solutia & Pharmacia are entitled to a contribution claim under § 113(f) of CERCLA. Now we must decide whether a party who has a claim under § 113(f) for cleanup costs may also have a claim under § 107(a) for those same costs. Solutia & Pharmacia argue that there is no language in either § 107 or § 113 to suggest that § 107(a) and § 113(f) are mutually exclusive remedies. Be that as it may, CERCLA must “be read as a whole,” Atl. Research, 551 U.S. at 135, 127 S.Ct. at 2336 (quotation marks omitted), such that its remedies remain “clearly distinct.” Id. at 138,127 S.Ct. at 2337 (quotation marks"
},
{
"docid": "14493353",
"title": "",
"text": "113(f). Cooper Indus., Inc. v. Aviall Services, Inc., 543 U.S. 157, 166, 125 S.Ct. 577, 583, 160 L.Ed.2d 548 (2004). Further, where § 107(a) imposes joint and several liability, § 113(f)’s right of contribution is premised upon the common law concept that the tortfeasor-plaintiff “paid more than his or her proportionate share,” such that allocation according to fault between the § 113(f) plaintiff and defendant is appropriate. Atl. Research, 551 U.S. at 138, 127 S.Ct. at 2338. Section 113 of CERCLA contains additional provisions that define the scope of available remedies under § 107(a) and § 113(f). First, under § 113(f)(2), if a party has settled its liability to the United States or a state government, it cannot later be held liable to another claimant for contribution under § 113(f). See 42 U.S.C. § 9613(f)(2). Second, § 113(g) of CERCLA provides for different statutes of limitations, depending on whether the claim originates under § 107(a) or § 113(f). See 42 U.S.C. § 9613(g)(2)-(3). In Atlantic Research, the Supreme Court expressly declined to decide the issue presented here — whether a party who incurs direct cleanup costs pursuant to a consent decree following a CERCLA lawsuit under § 106 or § 107 may bring an action to recover those costs under § 107(a). 551 U.S. at 139 n. 6, 127 S.Ct. at 2338 n. 6. However, we are not drawing on a completely blank slate. Since Atlantic Research was decided, other circuits have held that § 113(f) provides the “exclusive remedy for a liable party compelled to incur response costs pursuant to an administrative or judicially approved settlement under §§ 106 or 107,” including a consent decree. Morrison Enter., LLC v. Dravo Corp., 638 F.3d 594, 603 (8th Cir. 2011); accord Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir.2010) (holding that parties subject to a consent decree cannot bring a claim under § 107(a)); Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 128 (2d Cir.2010) (holding that parties that settle CERCLA liability with government agencies can only bring § 113(f) contribution claims)."
},
{
"docid": "16888586",
"title": "",
"text": "9607(a)(4)(C). Private parties lack standing to bring natural resource damages claims under section 107; such actions can be initiated only by the federal government or a state or tribal government for lands in that government’s possession or control, or held in public trust. See 42 U.S.C. § 9607(f)(1); Nat’l Ass’n of Mfrs. v. U.S. Dep’t of the Interior, 134 F.3d 1095, 1113 (D.C.Cir.1998) (“It is true that CERCLA does not permit private parties to seek recovery for damages to natural resources held in trust by the federal, state or tribal governments.... ”). The upshot of the government’s enforcement efforts in our case is that the defendants have had natural resource damages assessed against them, while NCR has not. But the question whether a party may initiate a section 107(a) action for natural resource damages is separate from the question whether a party subject to a section 107(a) action can then bring a section 113(f) action for contribution based on its liability for natural resource damages. The district court held that CERCLA § 113(f) makes contribution available for natural resource damages, and NCR does not challenge that decision on appeal. We would agree with it at any rate; section 113(f) makes contribution available based on a party’s being liable under section 107(a); it does not make contribution contingent on the type of section 107 damages at issue. See 42 U.S.C. § 9613(f) (“Any person may seek contribution from any other person who is hable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title.”) (emphasis added). The statute’s later reference to equitable allocation of “response costs” cannot reasonably be read as limiting this blanket authorization. Though section 107(a)(4) makes some explicit references to “response costs,” those references are nonexclusive, and all of the types of damages listed at section 107(a)(4) reasonably can be understood as “response costs” for the purposes of section 113(f). Even so, NCR argues that the availability of section 113(f) contribution for natural resource damages must be limited by the"
},
{
"docid": "16888587",
"title": "",
"text": "available for natural resource damages, and NCR does not challenge that decision on appeal. We would agree with it at any rate; section 113(f) makes contribution available based on a party’s being liable under section 107(a); it does not make contribution contingent on the type of section 107 damages at issue. See 42 U.S.C. § 9613(f) (“Any person may seek contribution from any other person who is hable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title.”) (emphasis added). The statute’s later reference to equitable allocation of “response costs” cannot reasonably be read as limiting this blanket authorization. Though section 107(a)(4) makes some explicit references to “response costs,” those references are nonexclusive, and all of the types of damages listed at section 107(a)(4) reasonably can be understood as “response costs” for the purposes of section 113(f). Even so, NCR argues that the availability of section 113(f) contribution for natural resource damages must be limited by the language of section 107(a)(4)(C), which makes a party liable for “damages for injury to, destruction of, or loss of natural resources ... resulting from such a release.” 42 U.S.C. § 9607(a)(4)(C) (emphasis added). According to NCR, the phrase “resulting from” establishes a causation requirement that must be proven before a party can be required to pay any natural resource damages. It claims the district court ignored this requirement and therefore improperly relieved the defendants of their burden of proof. NCR’s argument falters insofar as it blends the standard for establishing liability for natural resource damages under section 107(a) with the standard for obtaining contribution under section 113(f). Indeed, discussion of section 113(f) is noticeably absent from NCR’s brief. In its version of the statute, it is only when two parties have been held liable for causing the same natural resource damages through their independent actions that contribution between the two could come into play. But this is not what CERCLA says. A party may seek contribution “from any other person who is liable or potentially"
},
{
"docid": "16888527",
"title": "",
"text": "to enforce that order in 2010. Under CERCLA’s express terms, a party may seek contribution from any other PRP “during or following any civil action under section 9606 [CERCLA § 106] of this title or under section 9607(a) [CERCLA § 107(a)] of this title.” CERCLA § 113(f)(1); 42 U.S.C. § 9613(f)(1) (emphasis added). Thus, a section 113(f) action is available to NCR for the costs incurred under the 2007 order. This means that section 107(a) is not available. See Bernstein, 733 F.3d at 206. We are unpersuaded by NCR’s contention that the costs it incurred under the order before the action was filed in October 2010 were “voluntary,” and thus not part of the costs recoverable under section 113(f). Such slicing and dicing of costs incurred under the same administrative order makes little sense when a party’s liability for all of those costs will ultimately be determined in the enforcement action. As for the 2004 Administrative Order of Consent, our analysis again is guided by Bernstein. The question whether NCR has resolved its liability to the government through the consent order — and thus is limited to section 113(f) — is a matter of contract interpretation. On that score, the consent order here diverges in every meaningful way from the one in Bernstein that left section 107(a) available. In Bernstein, the covenants not to sue were “conditioned upon the complete and satisfactory performance” of the PRP’s obligations. 733 F.3d at 203. In contrast, under the 2004 order here both the EPA and WDNR “eovenant[ed] not to sue or to take administrative action against Respondents [under CERCLA or state law] for performance of the work.” It explicitly provided that “[t]hese covenants not to sue shall take effect upon the Effective Date ” (emphasis added); in Bernstein, the covenants did not take effect until completion of the work. To be sure, the NCR order also has language conditioning the covenants on “satisfactory performance” of NCR’s obligations. But this means only that the federal or state government could sue NCR if it breaches the agreement — a standard arrangement that is consistent with"
},
{
"docid": "23337338",
"title": "",
"text": "see 42 U.S.C. § 9607(a), and section 113 contribution actions, see id. § 9613(f)(1). Section 107 of CERCLA provides that certain enumerated parties — “potentially responsible persons”— shall be liable for ... all costs of removal or remedial action incurred by the United States Government ...; [and] any other necessary costs of response incurred by any other person consistent with the national contingency plan____ Id. § 9607(a). Cost recovery actions are generally subject to a six-year statute of limitations. Id. § 9613(g)(2). Section 113 of SARA provides that “[a]ny person may seek contribution from any other person who is liable or potentially liable under [section 107], during or following any civil action under [section 107].” Id. § 9613(f)(1). “No action for contribution for any response costs or damages may be commenced more than 3 years after ... the date of ... entry of a judicially approved settlement with respect to such costs or damages.” Id. § 9613(g)(3). ■ The primary question in this appeal is whether New Castle’s action against NUS is a cost recovery action or a contribution action. If it is a cost recovery action, it is timely; if it is a contribution action and we do not apply the discovery rule or equitable tolling, the action is not timely. We exercise plenary review over the district court’s interpretation of the relevant CERCLA and SARA provisions. Every court of appeals that has examined this issue has come to the same conclusion: a section 107 action brought for recovery of costs may be brought only by innocent parties that have undertaken cleanups. An action brought by a potentially responsible person is by necessity a section 113 action for contribution. See Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996); United States v. Colorado & Eastern R.R. Co., 50 F.3d 1530, 1536 (10th Cir.1995); United Technologies Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96, 99 (1st Cir.1994); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir.1994); see also Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir.1989). We agree with the"
},
{
"docid": "17105895",
"title": "",
"text": "by extension the Trust, had “resolved [their] liability to the United States ... for some or all of a response action or for some or all of the costs of such action” through an administrative settlement, thus satisfying the prerequisites for a contribution action pursuant to 42 U.S.C. § 9613(f)(3)(B). Specifically, the Trust had resolved its liability to the United States with respect to the execution of the EE/CA and with respect to the reimbursement of government response and oversight costs incurred prior to and in conjunction with the EE/CA project. As a result, they were entitled to recover the costs they incurred in accomplishing those tasks through a contribution action. Of course, the Trustees also incurred necessary costs of response consistent with the national contingency plan. They did not simply reimburse the EPA for a removal action it had already performed; they funded and executed the removal action themselves. In that sense, the trigger for a § 9607(a) cost recovery action was also met. This brings us to one of the questions raised in the briefs: are there any circumstances under which a plaintiff may bring both a cost recovery and a contribution claim under CERCLA? The Supreme Court left that possibility open in Atlantic Research: We do not suggest that §§ 107(a)(4)(B) and 113(f) have no overlap at all. Key Tronic Corp. v. United States, 511 U.S. 809, 816, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994) (stating the statutes provide “similar and somewhat overlapping remedies]”). For instance, we recognize that a PRP may sustain expenses pursuant to a consent decree following a suit under § 106 or § 107(a). See, e.g., United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F.3d 96, 97 (1st Cir.1994). In such a case, the PRP does not incur costs voluntarily but does not reimburse the costs of another party. We do not decide whether these compelled costs of response are recoverable under § 113(f), § 107(a), or both. 551 U.S. at 139 n. 6,127 S.Ct. 2331. Most circuits, after Atlantic Research, have not allowed a plaintiff to pursue a cost recovery claim when"
}
] |
560749 | per se rule of inadmissibility), cert. denied, 483 U.S. 1023, 107 S.Ct. 3270, 97 L.Ed.2d 768 (1987); United States v. Keplinger, 776 F.2d 678, 704 (7th Cir.1985) (same), cert. denied, 476 U.S. 1183, 106 S.Ct. 2919, 91 L.Ed.2d 548 (1986); see also Drake v. Clark, 14 F.3d 351, 359 (7th Cir.1994) (rejecting challenge on habeas corpus to the testimony of a witness who had undergone hypnosis). Moreover, the United States Supreme Court has invalidated an Arkansas statute that imposed a per se ban on hypnotically-refreshed testimony because it infringed a defendant’s right to testify on her own behalf, although the Court did not reach the question here of whether the prosecution may use hypnosis in a manner consistent with the Constitution. REDACTED Yet both this court and the United States Supreme Court have recognized that there are dangers when a witness undergoes hypnosis prior to testifying at trial. In Rock, for example, the Court observed that “[t]he most common response to hypnosis ... appears to be an increase in both correct and incorrect recollections.” 483 U.S. at 59, 107 S.Ct. at 2713. We too have noted that hypnosis may make a witness more susceptible to suggestion, may cause her to attempt to please the hypnotist through her responses to his questions, and may cause “confabulation,” which means that the witness may attempt to fill in memory gaps with information she does not actually recall. Kimberlin, 805 | [
{
"docid": "22611963",
"title": "",
"text": "States that have decided that hypnotically enhanced testimony should be excluded at trial on the ground that it tends to be unreliable. Other States that have adopted an exclusionary rule, however, have done so for the testimony of witnesses, not for the testimony of a defendant. The Arkansas Supreme Court failed to perform the constitutional analysis that is necessary when a defendant’s right to testify is at stake. Although the Arkansas court concluded that any testimony that cannot be proved to be the product of prehypnosis memory is unreliable, many courts have eschewed a per se rule and permit the admission of hypnotically refreshed testimony. Hypnosis by trained physicians or psychologists has been recognized as a valid therapeutic technique since 1958, although there is no generally accepted theory to explain the phenomenon, or even a consensus on a single definition of hypnosis. See Council on Scientific Affairs, Scientific Status of Refreshing Recollection by the Use of Hypnosis, 253 J. A. M. A. 1918, 1918-1919 (1985) (Council Report). The use of hypnosis in criminal investigations, however, is controversial, and the current medical and legal view of its appropriate role is unsettled. Responses of individuals to hypnosis vary greatly. The popular belief that hypnosis guarantees the accuracy of recall is as yet without established foundation and, in fact, hypnosis often has no effect at all on memory. The most common response to hypnosis, however, appears to be an increase in both correct and incorrect recollections. Three general characteristics of hypnosis may lead to the introduction of inaccurate memories: the subject becomes “suggestible” and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to “confabulate,” that is, to fill in details from the imagination in order to make an answer more coherent and complete; and, the subject experiences “memory hardening,” which gives him great confidence in both true and false memories, making effective cross-examination more difficult. See generally M. Orne et al., Hypnotically Induced Testimony, in Eyewitness Testimony: Psychological Perspectives 171 (G. Wells & E. Loftus, eds., 1984); Diamond, Inherent Problems in"
}
] | [
{
"docid": "20984106",
"title": "",
"text": "of business at which both she and petitioner worked) at 7:50 a.m. on October 23, 1980, (Tr.Tr. Vol. II: pp. 572-573); when she arrived at work, petitioner was already there; he was seated in a maroon Vega, which is a car different from the grey Vega in which he usually came to work; there was another person in the car with petitioner, (Tr.Tr. Vol. II: p. 573,1. 20 through p. 574,1. 11); in June of 1981, Ms. Robinette saw that maroon Vega for a second time at a police impoundment lot; at the police impoundment lot, she saw that the maroon Vega bore the license plate “BOOTSIE;” as a result of seeing the license plate “BOOTSIE” on the maroon Vega in the police impoundment lot, she remembered that the maroon Vega in which petitioner was seated on October 23, 1980, also bore the license plate “BOOTSIE.” (Tr.Tr. Vol. II: p. 583,1. 19 through p. 584, 1. 13; Respondent’s Exhibit A, Motion Transcript [hereinafter “M.Tr.”] p. 43, 11. 14-25 and p. 45, 1. 18 through p. 46, 1. 12). Approximately one week later, the Police had Ms. Robinette hypnotized. (M.Tr. p. 42, 11. 9-15). As both the United States Supreme Court and the United States Court of Appeals for the Eighth Circuit have noted, “[t]hree general characteristics of hypnosis can lead to the introduction of inaccurate memories,” Rock v. Arkansas, — U.S. -, 107 S.Ct. 2704, 2713, 97 L.Ed.2d 37 (1987): “confabulation,” “suggestion,” and “memory-hardening.” Id.; Little v. Armontrout, 835 F.2d 1240, 1244 (8th Cir. en banc 1987), cert. filed, (Mar. 15, 1988). “Confabulation” is the process by which the hypnosis subject unconsciously uses her imagination to fill in details or gaps in her memory in order to make her recall more coherent and complete. 107 S.Ct. at 2713; 835 F.2d at 1244. As a result of the “confabulation,” the hypnosis subject adds information and then “cannot distinguish between the true and imagined memories.” 835 F.2d at 1244. “Suggestion” is the process by which the hypnosis subject answers questions in the way the subject believes the hypnotist wants, which answers may"
},
{
"docid": "12139676",
"title": "",
"text": "thrown away; therefore, interrogators attempted to enhance her recall of that place through the medium of hypnosis. The results of that session were at best equivocal because her statement did not vary materially from the statement she had given previously. Moreover, the habeas court found that the mere fact Ms. Higdon was hypnotized did not render her testimony prejudicial to Petitioner because she attempted to “slant” her testimony at trial to favor Petitioner. There is ample support in the record for this conclusion. Indeed, other than the academic argument that admission of the testimony of one exposed to hypnosis is per se harmful, Petitioner has failed to demonstrate prejudice resulting from Ms. Higdon’s posthypnotic testimony. While Petitioner’s arguments regarding the forensic use of hypnosis have some appeal, we cannot accept the suggestion that constitutional error arises from the very fact a person testifies after a hypnotic session in which the person’s recall is examined. Indeed, in a case decided in the recently concluded term, the Supreme Court leads us to that conclusion. In Rock v. Arkansas, — U.S.-, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), in which a defendant’s use of her own posthypnotic testimony was prevented by a state’s proscription of hypnotically refreshed recollection, the Supreme Court considered the per se rule Petitioner advocates here. Although the issue before the Court was predicated on a defendant’s constitutional right to testify in her own defense, the Court noted the state followed a rule which makes inadmissible any posthypnotic testimony. The Court stated: In establishing its per se rule, the Arkansas Supreme Court simply followed the approach taken by a number of States that have decided that hypnotically enhanced testimony should be excluded at trial on the ground that it tends to be unreliable____ We are not now prepared to endorse without qualifications the use of hypnosis as an investigative tool; scientific understanding of the phenomenon and of the means to control the effect of hypnosis is still in its infancy____ A State’s legitimate interest in barring unreliable evidence [however] does not extend to per se exclusions that may be reliable"
},
{
"docid": "3574530",
"title": "",
"text": "2254. Drake v. Clark, 14 F.3d 351, 353 (7th Cir.1994). In Drake, the prosecution’s witness, Nancy Ward, had suggested to the police that she be hypnotized’ to aid her memory, and the police who were doing the investigation employed the hypnotist. Id. The defense objected to Ward’s testimony on the ground that she had been hypnotized by the police. Id. The trial court ruled that the statement given under hypnosis was inadmissible, but that any testimony recollected independently of the hypnosis was admissible. Id. Ward’s testimony was strictly limited to the details given in her first statement taken by the police, prior to the hypnosis. Id. Indiana found that pre-trial hypnosis of a witness did not affect the admissibility of her statements which had been made before the hypnotism, and were independent of and free of any taint from the statement given under hypnosis. Drake v. State, 467 N.E.2d 686 (Ind.1984). This court agreed, finding that it was not unfair for the trial court to exclude the defense’s attempts to impeach the witness on the ground that she had been hypnotized when the witness did not testify to anything stemming from the hypnotism. Drake well supports the reasoning and result here. It needs to be noted, as indicated in Drake, that the state rule in Indiana was before generally described as a per se rule. Drake v. State, 467 N.E.2d 686 (Ind.1984); see also Thomas M. Flemming, Annotation, Admissibility of Hypnotically Refreshed or Enhanced Testimony, 77 ALR 4th 944; and Peterson v. State, 448 N.E.2d 673 (Ind.1983). The state law of Wisconsin, however, is not so rigid. See State v. Armstrong, 110 Wis.2d 555, 329 N.W.2d 386 (1983), cert. den., 461 U.S. 946, 103 S.Ct. 2125, 77 L.Ed.2d 1304 (1983). The Wisconsin Supreme Court has concluded that a per se ban on hypnotically affected testimony is unwarranted. 329 N.W.2d at 394. Armstrong holds that a criminal defendant’s constitutional right to confront and cross-examine the witnesses against him is protected when the criminal defendant has the opportunity to cross-examine the witness and is permitted to introduce testimony on the witness’ pre-hypnosis"
},
{
"docid": "1849973",
"title": "",
"text": "(1983). Three major characteristics of hypnosis can lead to inaccurate memories. The first is confabulation, the process by which the subject fills in gaps in her memory to make her recall more coherent. Sometimes the added information is accurate, other times it is purely imagined. The subject cannot distinguish between the true and imagined memories. The second problem is suggestibility. The subject wishes to please the hypnotist, so she answers questions the way the hypnotist wants, not necessarily correctly. Suggestion by the hypnotist can be wholly unintended; he or she may suggest a response through tone of voice, demeanor, or body language. The third problem is memory-hardening. Hypnosis gives the subject great confidence in the memories reviewed. Because she now believes in the accuracy of her memory, regardless of its actual truth, the witness will be difficult to shake under cross-examination. See generally Rock v. Arkansas, 107 S.Ct. at 2713, citing M. Orne, et al., Hypnotically Induced Testimony, in Eyewitness Testimony: Psychological Perspectives 171 (G. Wells and E. Loftus, eds. 1985); Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif.L.Rev. 313, 333-342 (1980). Given these perils of hypnotically enhanced testimony, it is clear that an expert would have aided Little in his defense. The expert could have pointed out questions asked by Officer Lincecum which were suggestive or could have caused confabulation. The expert could have presented the limitations of hypnosis, and explained theories of memory. This would probably have had far more impact on the judge at the suppression hearing and the jury at trial than Little's lawyer’s attempts at impeaching the state's expert by reading from one of the psychology textbooks he found at a college library, or using information developed from interviewing a professor of psychology. As Justice (then Chief Judge) Cardozo once stated, a defendant is “at an unfair disadvantage if he is unable because of poverty to parry by his own [expert] witnesses the thrusts of those against him.” Reilly v. Berry, 250 N.Y. 456, 461, 166 N.E. 165, 167 (1929). The State called its own expert on hypnosis"
},
{
"docid": "12062994",
"title": "",
"text": "record is unclear as to the degree of certainty Herdeg evinced when she picked Williams’ picture out of the photo display. However, even if we assume that she was fairly certain, the only photograph in the lineup of a man with a beard was the photo of Williams, thus diminishing the value of any certainty Herdeg may have evinced. Furthermore, Williams attended a deposition taken of Herdeg. Defense counsel questioned Herdeg as follows: Q. You are aware that Mr. Williams is sitting right here beside me, are you not, or are you? A. No. Q. Does that man look like the man in the picture? A. There is a familiarity. Even when seated face-to-face with Williams after the suggestive photo lineups and the hypnosis session, Herdeg could not positively identify Williams. It thus appears that Herdeg made positive identifications of Williams only in suggestive settings; i.e., at the impermissibly suggestive photo lineups and at trial where Williams was the known defendant. The Neil v. Biggers analysis indicates that the totality of the circumstances surrounding Herdeg’s identification suggests a substantial likelihood of misidentification. 409 U.S. at 198-99, 93 S.Ct. at 381-82. Moreover, the use of hypnosis to improve Herdeg’s memory carries the risk of highly suggestive hypnosis procedures which adds to the likelihood of a misidentification. Several problems are associated with refreshing recollections by hypnosis. In Sprynczynatyk v. General Motors Corp., 771 F.2d 1112, 1119-20 (8th Cir.), cert. denied, 475 U.S. 1046, 106 S.Ct. 1263, 89 L.Ed.2d 572 (1985), this court recognized that hypersuggestibility and hypercompliance on the part of the subject may flaw recollection under hypnosis. Hypnosis is also associated with confabulation, a tendency by the subject to be influenced by a need to fill in the gaps in his or her memory. After hypnosis, neither the hypnotist nor the subject can distinguish between real memories and pseudomemories confabulated under hypnosis. Furthermore, after hypnosis, the memory one has of an event, be it true or false, becomes hardened in the subject’s mind. 771 F.2d at 1119-20. See Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 2712-14, 97 L.Ed.2d 37"
},
{
"docid": "1849972",
"title": "",
"text": "U.S. -, 107 S.Ct. 2192, 95 L.Ed.2d 847 (1987); see also Vassar v. Solem, 763 F.2d 975, 977 (8th Cir.1985); but see Stafford v. Love, 726 P.2d 894 (Okla.1986). Leatrice Little demonstrated that an expert in hypnosis would have substantially aided his defense, and that denial of such expert would and did have a material impact on his trial. While hypnosis has been accepted as a therapeutic tool since 1958, its role in criminal investigations and trials has remained controversial. See Council on Scientific Affairs, Scientific Status of Refreshing Recollection by the Use of Hypnosis, 253 J.A.M.A. 1918 (1985), cited in Rock v. Arkansas, — U.S. -, 107 S.Ct. 2704, 2713, 97 L.Ed.2d 37 (1987). Though studies have shown that hypnosis leads to an increase in a subject’s recollections, both true and imagined memories may result. Id. Thus, some experts have concluded that while hypnosis is useful in investigation and establishing leads, it is less useful as a truth-determiner. See People v. Hughes, 59 N.Y. 2d 523, 466 N.Y.S.2d 255, 260, 453 N.E.2d 484, 489 (1983). Three major characteristics of hypnosis can lead to inaccurate memories. The first is confabulation, the process by which the subject fills in gaps in her memory to make her recall more coherent. Sometimes the added information is accurate, other times it is purely imagined. The subject cannot distinguish between the true and imagined memories. The second problem is suggestibility. The subject wishes to please the hypnotist, so she answers questions the way the hypnotist wants, not necessarily correctly. Suggestion by the hypnotist can be wholly unintended; he or she may suggest a response through tone of voice, demeanor, or body language. The third problem is memory-hardening. Hypnosis gives the subject great confidence in the memories reviewed. Because she now believes in the accuracy of her memory, regardless of its actual truth, the witness will be difficult to shake under cross-examination. See generally Rock v. Arkansas, 107 S.Ct. at 2713, citing M. Orne, et al., Hypnotically Induced Testimony, in Eyewitness Testimony: Psychological Perspectives 171 (G. Wells and E. Loftus, eds. 1985); Diamond, Inherent Problems in"
},
{
"docid": "17291209",
"title": "",
"text": "66 L.Ed.2d 14; People v. Norcutt, 44 Ill.2d 256; 255 N.E.2d 442 (1970) (admitting confession over claims that it was obtained involuntarily, through hypnosis); State v. Walker, 416 S.W.2d 134 (Mo.1967) (admitting defendant’s confession despite contention police had taken defendant to hypnotist); but see Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954) (refusing admission of confession elicited through mental coercion); Comment, Hypnosis of the Accused: Defendant’s Choice, 75 J.Crim.L. 995, 1000 n. 22 (collecting other cases where courts excluded hypnotically induced confessions as unreliable). The lone United States Supreme Court case to address the constitutionality of admitting a suspect’s hypnotically refreshed testimony is similarly unavailing. That 1987 case, Rock v. Arkansas, held that a per se rule barring such testimony, which the state of Arkansas was enforcing to prevent the petitioner from introducing exculpatory evidence about her actions in the shooting death of her husband, violated the suspect’s constitutional rights to testify and conduct a defense. 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37. The Supreme Court’s lengthy discussion regarding the lack of consensus among courts and practitioners on the issue of whether hypnotically refreshed testimony should be admissible does little to bolster plaintiffs contention that the constitutionality of hypnosis, even of a suspect, was clearly established even by 1987. Id. at 57-58 & nn. 14-16, 107 S.'Ct. at 2712 & nn. 14-16. Rock, which protected a suspect’s right to undergo hypnosis for the purpose of bolstering her defense, further undermines plaintiffs claim that defendant should have been aware that the use of hypnosis would violate her constitutional rights. Plaintiff also cites several Indiana cases that discuss hypnosis. These state law cases concern the evidentiary flaws inherent in hypnotically induced testimony. In Pearson v. State, 441 N.E.2d 468, 472 (Ind.1982), the Indiana Supreme Court noted that “hypnotically recalled testimony is often a mixture of fact and fantasy.” In Strong v. State, that same court stated that “the better reasoned cases hold that evidence derived from a witness while he is in a hypnotic trance is inherently unreliable and should, therefore, be excluded as having"
},
{
"docid": "7808417",
"title": "",
"text": "criminal defendant to testify on his own behalf — that opinion is, nonetheless, instructive. In Rock, the Supreme Court granted certiorari to review a Supreme Court of Arkansas ruling which limited the testimony of a criminal defendant who had been hypnotized to “matters remembered and stated to the examiner prior to being placed under hypnosis.” The basis for the Arkansas court’s decision was that hypnotically refreshed testimony of a witness is inadmissible per se because the dangers of admitting such testimony always outweigh whatever probative value it may have. The Supreme Court vacated and remanded, reasoning instead that the per se exclusionary rule impermissibly infringed on a criminal defendant’s right to testify on his own behalf, in part because the Arkansas rule left the trial court with no discretion to admit such testimony even if it was determined to be reliable. Discussing the reliability of hypnotically refreshed testimony the Court stated that the most common response to hypnosis appears to be an increase in both correct and incorrect recollections. Id. at 107 S.Ct. 2713. In the Court’s words this occurs because [t]he subject becomes “suggestible” and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to “confabulate,” that is, to fill in details from the imagination in order to make answers more coherent and complete; and, the subject experiences “memory hardening,” which gives him great confidence in both true and false memories, making effective cross-examination more difficult. The Court went on to say that [t]he inaccuracies the process introduces can be reduced, although perhaps not eliminated, by the use of procedural safeguards. One set of suggested guidelines calls for hypnosis to be performed only by a psychologist or psychiatrist with special training in its use and who is independent of the investigation. These procedures reduce the possibility that biases will be communicated to the hyper-suggestive subject by the hypnotist. Suggestion will be less likely also if the hypnosis is conducted in a neutral setting with no one present but the hypnotist and the subject. Tape or video recording of"
},
{
"docid": "6252589",
"title": "",
"text": "recording is made of all interrogations before, during and after hypnosis; 4) corroborating evidence exists; and 5) the pre-hypnosis and post-hypnosis statements substantially correspond. See Rock v. Arkansas, 483 U.S. 44, 60-61, 107 S.Ct. 2704, 2713-2714, 97 L.Ed.2d 37 (1987); White v. Ieyoub, 25 F.3d 245, 247-248 (5th Cir. 1994). This Court has, however, identified one situation where hypnotically-enhanced testimony is per se inadmissible. In United States v. Valdez, a Texas Ranger participating in surveillance to investigate an extortion attempt witnessed a man approach the money-drop area and then turn away. He was later unable to identify the man in a lineup. The Ranger knew that Valdez was the prime suspect in the investigation. After undergoing hypnosis, the Ranger -identified the man he had seen as Valdez. There was no other corroboration for the identification of Valdez at the drop site. See United States v. Valdez, 722 F.2d 1196, 1197-1198 (5th Cir.1984). This Court held that “when ... a hypnotized subject identifies for the first time a person he has reason to know is already under suspicion, the post-hypnotic testimony is inadmissible whatever procedural safeguards were used to attempt to sanitize the hypnotic session.” United States v. Valdez, 722 F.2d at 1203. Mersch’s case appears to fit squarely within the holding of Valdez. Mersch knew that her sister suspected the police officers of being responsible for Mersch’s injuries. She also admitted in her deposition that, pre-hypnosis, her own suspicions of the police officers were based on the fact that she had been in their custody rather than on any concrete memory of an assault. Like the Ranger in Valdez, Mersch had a suspicion but no direct evidence to substantiate her suspicion. Under such circumstances, as we recognized in Valdez, hypnotically-enhanced testimony is so unreliable as to be more prejudicial than probative. Even if Valdez is somehow distinguishable from this case, Mersch’s testimony would still be inadmissible under the totality of the circumstances test. Mersch neglected to provide the trial court with rudimentary information to support the objectivity and lack of suggestion at her hypnosis sessions. For example, she did not"
},
{
"docid": "6252588",
"title": "",
"text": "this Court has dealt with the admissibility of hypnotically-enhanced testimony in the criminal context, it has not done so in a civil case. While constitutional safeguards applicable to criminal cases may suggest extra caution when hypnotically-enhanced evidence is offered by the prosecution, there is no other reason why the analyses should substantially differ, and other courts have adopted a consistent approach to both civil and criminal cases. This court will be guided by our earlier cases. Hypnotically-enhanced testimony is not per se inadmissible in the Fifth Circuit. See Wicker v. McCotter, 783 F.2d 487, 492 (5th Cir.1986). Rather, courts in this Circuit evaluate such testimony on a case-by-case basis, weighing the probative value of the testimony against its possible prejudicial effect. See id. This approach requires consideration of a number of factors, including whether: 1) the hypnosis is done by a psychologist or psychiatrist trained in its use and independent of either party; 2) the hypnosis is done in a neutral setting with only the hypnotist and the subject present; 3) an audio or video recording is made of all interrogations before, during and after hypnosis; 4) corroborating evidence exists; and 5) the pre-hypnosis and post-hypnosis statements substantially correspond. See Rock v. Arkansas, 483 U.S. 44, 60-61, 107 S.Ct. 2704, 2713-2714, 97 L.Ed.2d 37 (1987); White v. Ieyoub, 25 F.3d 245, 247-248 (5th Cir. 1994). This Court has, however, identified one situation where hypnotically-enhanced testimony is per se inadmissible. In United States v. Valdez, a Texas Ranger participating in surveillance to investigate an extortion attempt witnessed a man approach the money-drop area and then turn away. He was later unable to identify the man in a lineup. The Ranger knew that Valdez was the prime suspect in the investigation. After undergoing hypnosis, the Ranger -identified the man he had seen as Valdez. There was no other corroboration for the identification of Valdez at the drop site. See United States v. Valdez, 722 F.2d 1196, 1197-1198 (5th Cir.1984). This Court held that “when ... a hypnotized subject identifies for the first time a person he has reason to know is already"
},
{
"docid": "12062995",
"title": "",
"text": "identification suggests a substantial likelihood of misidentification. 409 U.S. at 198-99, 93 S.Ct. at 381-82. Moreover, the use of hypnosis to improve Herdeg’s memory carries the risk of highly suggestive hypnosis procedures which adds to the likelihood of a misidentification. Several problems are associated with refreshing recollections by hypnosis. In Sprynczynatyk v. General Motors Corp., 771 F.2d 1112, 1119-20 (8th Cir.), cert. denied, 475 U.S. 1046, 106 S.Ct. 1263, 89 L.Ed.2d 572 (1985), this court recognized that hypersuggestibility and hypercompliance on the part of the subject may flaw recollection under hypnosis. Hypnosis is also associated with confabulation, a tendency by the subject to be influenced by a need to fill in the gaps in his or her memory. After hypnosis, neither the hypnotist nor the subject can distinguish between real memories and pseudomemories confabulated under hypnosis. Furthermore, after hypnosis, the memory one has of an event, be it true or false, becomes hardened in the subject’s mind. 771 F.2d at 1119-20. See Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 2712-14, 97 L.Ed.2d 37 (1987). [T]he basic problem for the courts is that hypnosis does not insure the accuracy of the witness’ recall. Quite often hypnotized persons produce more information following hypnosis, but it may be accurate or inaccurate and there is no scientific technique that can reliably discriminate between true or false details recounted during hypnosis. Sprynczynatyk, 771 F.2d at 1120 (footnote omitted). The police kept no memoranda or notes of the hypnosis session in which Herdeg participated. The record, however, indicates that a police officer who participated in the investigation of Domann’s murder conducted Herdeg’s hypnosis and during that session showed Herdeg a single photograph, that of Doyle Williams. Thus, consideration of the admittedly suggestive photospread, the absence of any positive verification of Williams’ identification prior to trial and the showing of Herdeg’s uncertainty in fact of her identification of Williams, together with an uncontrolled hypnotic session in which Herdeg could be highly influenced to identify Williams, leads to the conclusion that the in-court identification must be rejected on due process grounds. The highly suggestive incidents which"
},
{
"docid": "2070968",
"title": "",
"text": "A.2d 302 (1968), cert. denied, 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 468 (1969); United States v. Narciso, 446 F.Supp. 252 (E.D.Mich.1977). Hypnosis, it has been suggested, can help people to remember things that they would not otherwise remember. Dr. Martin Orne, a psychiatrist and frequent expert witness, believes that “hypnosis may be useful in some instances to help bring back forgotten memories following an accident or a crime.” Orne, The Use and Misuse of Hypnosis in Court, 27 Int. J. Clinical & Experimental Hypnosis 311, 317-18, quoted in State v. Hurd, 432 F.2d at 93. For example, in Chowchilla, California, twenty-six children were kidnapped from a school bus, and the bus driver was able to recall, under hypnosis, a license plate number which was instrumental in the capture of the kidnappers. Note, Excluding Hypnotically Induced Testimony on the “Hearsay Rationale, ” 20 Val.U.L.Rev. 619, 619 n. 6 (1986). Often police attempt to use hypnosis as a trigger to the recollection of the visage of a criminal suspect. See Clay v. Vose, 771 F.2d 1 (1st Cir.1985). The dilemma, of course, is that the very process that yields investigative fruits may sow testimonial dangers. We recognize that hypnosis has drawbacks, specifically, the potential for suggestibility, confabulation, and hardening of memory, and the attendant danger of misidentification. \"While many of the same problems inhere in eyewitness testimony generally, they can be compounded by the technique of hypnosis, a powerful tool, yet one imperfectly understood. Many psychologists believe that a hypnotized person is more likely to be led by suggestions made by a hypnotist or questioner. See Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif.L.Rev. 313, 333 (1980); United States v. Valdez, 722 F.2d at 1201. “The attitude, demeanor, and expectations of the hypnotist, his tone of voice, and his body language may all communicate suggestive messages to the subject.” Diamond, 68 Calif.L.Rev. at 333. Moreover, the relationship between hypnotist and subject may be both intense and intimate. Subconsciously, the subject may give the response he or she thinks the hypnotist wants to hear."
},
{
"docid": "6252593",
"title": "",
"text": "RENDERED. . In December 1994, Mersch reported to an investigating officer that she had been assaulted from behind by an unknown suspect on September 9. At that time, she did not state that she had been assaulted by police. She told the responding officer that she made the report in order to receive money from a state-sponsored Victim's Compensation fund. . Courts have been cautious of hypnotically-enhanced testimony because of the tendency of hypnosis to create inaccurate memories. Three characteristics of hypnosis cause this risk. First, the subject becomes highly \"suggestible”, easily susceptible to cues from the hypnotist. Second, the subject is more likely to \"confabulate”, i.e., draw on the imagination to round out an incomplete memory. Third, the subject's memory becomes \"hardened”, increasing the subject’s confidence in both true and false memories and thus making cross-examination less effective. See Rock v. Arkansas, 483 U.S. 44, 59-60, 107 S.Ct. 2704, 2713, 97 L.Ed.2d 37 (citing M. Orne et al., Hypnotically Induced Testimony, in Eyewitness Testimony: Psychological Perspectives 171 (G. Wells & E. Loftus, eds., 1984) and Diamond, Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness, 68 Calif.L.Rev. 313, 333-342 (1980)). Courts around the country accordingly differ on the standards of admissibility. See discussion in Borawick v. Shay, 68 F.3d 597, 604-606 (2d Cir. 1995). . The magistrate judge held that Valdez was inapplicable, reasoning that Mersch's pre-hypnosis suspicions constituted sufficient pre-hypnosis identification of defendants to avoid the Valdez rule. Mersch’s suspicions — which she admitted were not grounded in any independent memory of the event — cannot he considered a pre-hypnosis identification under Valdez. On the contrary, her suspicions, drawn from the sheer fact of injury and having been in police custody, are exactly the kind of prior suspicions that Valdez was concerned about. . In White v. Ieyoub, this Court stated that \"the court should determine whether the defendant has shown, from the totality of the circumstances, that the post-hypnosis testimony is unreliable.\" White v. Ieyoub, 25 F.3d at 248-249. White arose, however, in the habe-as context, where the petitioner bears the burden of showing"
},
{
"docid": "3921467",
"title": "",
"text": "merit. See slip op. at 13-14. We first address Bundy’s claim that admission of Anderson’s testimony violated the Confrontation Clause of the Sixth Amendment. In Rock v. Arkansas, — U.S. -, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), the Supreme Court held that a state’s per se rule excluding hypnotically refreshed testimony impermissibly infringed on a criminal defendant’s right to testify. Although the Supreme Court expressly did not address the issue presented here, see id. at 2712 n. 15, its reasoning informs our analysis. The Court stated that “it has not been shown that hypnotically enhanced testimony is always so untrustworthy and so immune to the traditional means of evaluating credibility” such that a per se ban is warranted. Id. at 2714. The Court recognized that cross-examination remained as an effective tool for revealing inconsistencies, id., even though hypnosis may lead to the introduction of inaccurate memories, “making effective cross-examination more difficult.” Id. at 2713. Rock thus teaches that, although hypnosis may make effective cross-examination more difficult, it does not always make it impossible, thereby preserving the opportunity for effective cross-examination safeguarded by the Sixth Amendment. See Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985) (“[T]he Confrontation Clause guarantees the opportunity for effective cross-examination....” (emphasis in original)); accord Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). Consequently, we decline to hold that the Confrontation Clause requires a per se ban on the admission of hypnotically refreshed testimony. We thus examine whether, on the facts of the present case, a Confrontation Clause violation occurred. “The sixth amendment confrontation clause is satisfied where sufficient information is elicited from the witness from which the jury can adequately gauge the witness[’] credibility.” United States v. Burke, 738 F.2d 1225, 1227 (11th Cir.1984). Such information was elicited here. In particular, Anderson admitted that the hypnotic sessions he underwent, to some degree, had an effect on the testimony he was giving. Moreover, defense counsel explored why Anderson took so long to come forward; Anderson’s activities on the morning of February 9th;"
},
{
"docid": "20984108",
"title": "",
"text": "not be factually correct. 107 S.Ct. at 2713; 835 F.2d at 1244. “Memory-hardening” is the process by which the hypnosis subject now has greater “confidence in both true and false memories, [thus] making effective cross-examination more difficult.” 107 S.Ct. at 2713; 835 F.2d at 1244. However, despite these acknowledged problems with hypnosis, neither the United States Supreme Court nor the United State Court of Appeals for the Eighth Circuit has yet held that a state is barred from introducing hypnotically enhanced testimony against a criminal defendant. Rock v. Arkansas, — U.S.-, 107 S.Ct. 2704, 2712 n. 15, 97 L.Ed.2d 37 (1987); Little v. Armontrout, 835 F.2d 1240, 1243 & n. 5 (8th Cir. en banc 1987), cert. filed, (Mar. 15, 1988). In Rock, the Supreme Court held that states may not exclude, on a per se basis, all hypnotically enhanced testimony offered by criminal defendants. 107 S.Ct. at 2714. In Little, the key evidence against the defendant was the victim’s identification of the defendant. 835 F.2d at 1241. Yet, the victim identified the defendant only after being hypnotized. Id. at 1240-1241. In this circumstance, the Eighth Circuit, en banc, held that “the denial of a state-provided expert on hypnosis to assist this indigent defendant rendered the trial fundamentally unfair and require[d] that the conviction be set aside.” 835 F.2d at 1243. The Eighth Circuit expressly declined to reach the broader question of when and under what circumstances hypnotically enhanced testimony is inadmissible. Id. Under Missouri law in effect at the time of petitioner’s trial, the trial court did not err in permitting Ms. Robinette to testify even though she had been hypnotized prior to the trial. Further, there is no per se constitutional rule barring a witness from testifying solely because she has been hypnotized prior to her trial testimony such that her memory may now be hardened. Rock v. Arkansas, — U.S.-, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); Little v. Armontrout, 835 F.2d 1240 (8th Cir. en banc 1987), cert. filed, (Mar. 15, 1988). The Court concludes therefore that petitioner is entitled to federal habeas corpus relief on"
},
{
"docid": "3574529",
"title": "",
"text": "of either party and should have little investment in the ultimate disposition of the case. The qualified professional should have minimal preconceptions about the case. (3) Any information given to the hypnotist by either party should be noted in writing so that subsequently the extent of information that the subject received from the hypnotist may be determined. (4) Before hypnosis, the hypnotist should obtain a detailed description of the facts from the subject, avoiding adding new elements to the subject’s description. (5) The session should be recorded, and preferably videotaped, so that a permanent record is available to ensure against suggestive procedures. (6) Only the hypnotist and the subject should be present during any phase of the hypnotic session. Kimberlin, 805 F.2d at 255, fn. 2. While these are. not written in constitutional stone they are informative of relevant due process standards. Since oral argument in this case, the subject of hypnosis has arisen in the precise context of a state criminal conviction being reviewed in a United States district court under 28 U.S.C. § 2254. Drake v. Clark, 14 F.3d 351, 353 (7th Cir.1994). In Drake, the prosecution’s witness, Nancy Ward, had suggested to the police that she be hypnotized’ to aid her memory, and the police who were doing the investigation employed the hypnotist. Id. The defense objected to Ward’s testimony on the ground that she had been hypnotized by the police. Id. The trial court ruled that the statement given under hypnosis was inadmissible, but that any testimony recollected independently of the hypnosis was admissible. Id. Ward’s testimony was strictly limited to the details given in her first statement taken by the police, prior to the hypnosis. Id. Indiana found that pre-trial hypnosis of a witness did not affect the admissibility of her statements which had been made before the hypnotism, and were independent of and free of any taint from the statement given under hypnosis. Drake v. State, 467 N.E.2d 686 (Ind.1984). This court agreed, finding that it was not unfair for the trial court to exclude the defense’s attempts to impeach the witness on the"
},
{
"docid": "3921466",
"title": "",
"text": "earlier observed with a girl near the Lake City Junior High School. Anderson was hypnotized twice in order to enhance his recollection. After conducting a hearing and taking testimony, the trial court denied Bundy’s pretrial motion to suppress Anderson’s testimony. The denial was without prejudice to Bundy’s right to object at trial to specific portions of that testimony. R145:13,387; app. 22. At trial, Anderson made an in-court identification of Bundy as closely resembling the man he saw and, from a photograph introduced into evidence, identified Kimberly Leach as the girl. On direct appeal, the Florida Supreme Court held “that hypnotically refreshed testimony is per se inadmissible in a criminal trial in this state, but hypnosis does not render a witness incompetent to testify to those facts demonstrably recalled prior to hypnosis.” Bundy, 471 So.2d at 18. Relying on harmless-constitutional-error cases of the United States Supreme Court, the Florida Supreme Court went on to conclude that the admission of Anderson’s hypnotically refreshed testimony was harmless error. Id. at 19. The district court held this claim without merit. See slip op. at 13-14. We first address Bundy’s claim that admission of Anderson’s testimony violated the Confrontation Clause of the Sixth Amendment. In Rock v. Arkansas, — U.S. -, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), the Supreme Court held that a state’s per se rule excluding hypnotically refreshed testimony impermissibly infringed on a criminal defendant’s right to testify. Although the Supreme Court expressly did not address the issue presented here, see id. at 2712 n. 15, its reasoning informs our analysis. The Court stated that “it has not been shown that hypnotically enhanced testimony is always so untrustworthy and so immune to the traditional means of evaluating credibility” such that a per se ban is warranted. Id. at 2714. The Court recognized that cross-examination remained as an effective tool for revealing inconsistencies, id., even though hypnosis may lead to the introduction of inaccurate memories, “making effective cross-examination more difficult.” Id. at 2713. Rock thus teaches that, although hypnosis may make effective cross-examination more difficult, it does not always make it impossible, thereby"
},
{
"docid": "7808416",
"title": "",
"text": "Gregory, 808 F.2d 679, 680-81 (8th Cir.1987); United States v. Dempewolf, 817 F.2d 1318 (8th Cir.), cert. denied, — U.S. -, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987). But an otherwise valid conviction should not be set aside if the reviewing court is able to confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. Delaware v. Van Arsdall, supra 475 U.S. at 684, 106 S.Ct. at 1438; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In this case the court finds that there was constitutional error committed and that the error was not harmless beyond a reasonable doubt. There have been a plethora of recent federal and state court decisions concern ing the effects of hypnotically enhanced testimony, most of which are noted in the Supreme Court’s recent decision on the subject. See Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). Although Rock decided the converse of the issue presented here — the right of a previously hypnotized criminal defendant to testify on his own behalf — that opinion is, nonetheless, instructive. In Rock, the Supreme Court granted certiorari to review a Supreme Court of Arkansas ruling which limited the testimony of a criminal defendant who had been hypnotized to “matters remembered and stated to the examiner prior to being placed under hypnosis.” The basis for the Arkansas court’s decision was that hypnotically refreshed testimony of a witness is inadmissible per se because the dangers of admitting such testimony always outweigh whatever probative value it may have. The Supreme Court vacated and remanded, reasoning instead that the per se exclusionary rule impermissibly infringed on a criminal defendant’s right to testify on his own behalf, in part because the Arkansas rule left the trial court with no discretion to admit such testimony even if it was determined to be reliable. Discussing the reliability of hypnotically refreshed testimony the Court stated that the most common response to hypnosis appears to be an increase in both correct and incorrect recollections. Id. at 107 S.Ct. 2713. In"
},
{
"docid": "7808418",
"title": "",
"text": "the Court’s words this occurs because [t]he subject becomes “suggestible” and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to “confabulate,” that is, to fill in details from the imagination in order to make answers more coherent and complete; and, the subject experiences “memory hardening,” which gives him great confidence in both true and false memories, making effective cross-examination more difficult. The Court went on to say that [t]he inaccuracies the process introduces can be reduced, although perhaps not eliminated, by the use of procedural safeguards. One set of suggested guidelines calls for hypnosis to be performed only by a psychologist or psychiatrist with special training in its use and who is independent of the investigation. These procedures reduce the possibility that biases will be communicated to the hyper-suggestive subject by the hypnotist. Suggestion will be less likely also if the hypnosis is conducted in a neutral setting with no one present but the hypnotist and the subject. Tape or video recording of all interrogations, before, during, and after hypnosis, can help reveal if leading questions were asked ... Cross-examination, even in the face of a confident defendant, is an effective tool for revealing inconsistencies. Moreover, a jury can be educated to the risks of hypnosis through expert testimony and cautionary instructions, (citations omitted). 107 S.Ct. at 2713-14. Similar procedural safeguards have also been suggested by the Eighth Circuit Court of Appeals. See Sprynczynatyk v. General Motors Corp., 771 F.2d 1112 (8th Cir.), cert. denied, 475 U.S. 1046, 106 S.Ct. 1263, 89 L.Ed.2d 572 (1986). In the instant case it is undisputed that Vicki Lehman, one of only two occurrence witnesses, had been hypnotized prior to the time she participated in a reenactment of the crime and before she testified at trial. It is further undisputed that the trial court never had an opportunity to rule on the admissibility or reliability of her hypnotically refreshed testimony, because the fact that she had been hypnotized was never disclosed by the prosecution. Furthermore, it is apparent that virtually no procedural"
},
{
"docid": "20984107",
"title": "",
"text": "46, 1. 12). Approximately one week later, the Police had Ms. Robinette hypnotized. (M.Tr. p. 42, 11. 9-15). As both the United States Supreme Court and the United States Court of Appeals for the Eighth Circuit have noted, “[t]hree general characteristics of hypnosis can lead to the introduction of inaccurate memories,” Rock v. Arkansas, — U.S. -, 107 S.Ct. 2704, 2713, 97 L.Ed.2d 37 (1987): “confabulation,” “suggestion,” and “memory-hardening.” Id.; Little v. Armontrout, 835 F.2d 1240, 1244 (8th Cir. en banc 1987), cert. filed, (Mar. 15, 1988). “Confabulation” is the process by which the hypnosis subject unconsciously uses her imagination to fill in details or gaps in her memory in order to make her recall more coherent and complete. 107 S.Ct. at 2713; 835 F.2d at 1244. As a result of the “confabulation,” the hypnosis subject adds information and then “cannot distinguish between the true and imagined memories.” 835 F.2d at 1244. “Suggestion” is the process by which the hypnosis subject answers questions in the way the subject believes the hypnotist wants, which answers may not be factually correct. 107 S.Ct. at 2713; 835 F.2d at 1244. “Memory-hardening” is the process by which the hypnosis subject now has greater “confidence in both true and false memories, [thus] making effective cross-examination more difficult.” 107 S.Ct. at 2713; 835 F.2d at 1244. However, despite these acknowledged problems with hypnosis, neither the United States Supreme Court nor the United State Court of Appeals for the Eighth Circuit has yet held that a state is barred from introducing hypnotically enhanced testimony against a criminal defendant. Rock v. Arkansas, — U.S.-, 107 S.Ct. 2704, 2712 n. 15, 97 L.Ed.2d 37 (1987); Little v. Armontrout, 835 F.2d 1240, 1243 & n. 5 (8th Cir. en banc 1987), cert. filed, (Mar. 15, 1988). In Rock, the Supreme Court held that states may not exclude, on a per se basis, all hypnotically enhanced testimony offered by criminal defendants. 107 S.Ct. at 2714. In Little, the key evidence against the defendant was the victim’s identification of the defendant. 835 F.2d at 1241. Yet, the victim identified the defendant only"
}
] |
288614 | not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. Section 78t. Liability of Controlling Persons. A. Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the con trolling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation of cause of action. In REDACTED the court noted that a plaintiff bringing an action under Section 78j must establish six elements which had traditionally been required under the common law tort action of deceit. To prevail in such an action, a plaintiff had to establish six elements: (1) a false representation of; (2) a material; (3) fact; (4) defendant’s knowledge of its falsity and his intention that plaintiff rely on it; (5) the plaintiff’s reasonable reliance thereon; and (6) his resultant loss. Id. at p. 1160. In Vt Investors v. R & D Funding Corporation, 733 F.Supp. 823, 828 (D.N.J.1990), the court identified the significant elements the plaintiff must allege in a complaint to maintain a Rule 10b-5 violation. In this jurisdiction the significant elements of | [
{
"docid": "22600479",
"title": "",
"text": "in particular. II. Legal Background on Rule 10b-5; The Fraud on the Market Theory Section 10 of the 1934 Securities Act provides that It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. 15 U.S.C. § 78j. Subsequent to passage of the 1934 Act, the Securities and Exchange Commission promulgated Regulation lob-5, providing that: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) to employ any device, scheme, or artifice to defraud, (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made in the light of the circumstances under which they were made, not misleading, or (c) to engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 C.P.R. § 240.10b-5. Section 10 was built on, and retained, many of the characteristics of the common law tort action of deceit. See 3 Loss, Securities Regulation 1430 (1961). To prevail in such an action, a plaintiff had to establish six elements: 1) a false representation of 2) a material 3) fact; 4) defendant’s knowledge of its falsity and his intention that plaintiff rely on it; 5) the plaintiff’s reasonable reliance thereon; and 6) his resultant loss. Id. at 1431. There is little dispute that plaintiffs in § 10(b) claims must generally satisfy"
}
] | [
{
"docid": "11248113",
"title": "",
"text": "the light most favorable to plaintiffs. Royal Bank of Canada v. FDIC, 733 F.Supp. 1091, 1094 (N.D.Tex.1990) (Fitzwater, J.). To survive a Rule 12(b)(6) dismissal, plaintiffs must allege facts entitling them to relief for their substantive causes of action. Section 10(b) makes it unlawful for any person [t]o use or employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [Securities and Exchange] Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. 15 U.S.C. § 78j(b). Rule 10b-5, in relevant part, makes it unlawful for any person, directly or indirectly, [t]o make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading ... in connection with the purchase or sale of any security. 17 C.F.R. § 240.10b-5. To establish a securities fraud claim under Rule 10b-5, a plaintiff must show (1) a misstatement or an omission, (2) of a material fact, (3) made with scienter, (4) on which plaintiff relied, and (5) which proximately caused plaintiffs injury. Williams v. WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir.), cert. denied, — U.S. -, 118 S.Ct. 412, 139 L.Ed.2d 315 (1997); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994). Section 20(a) defines controlling person liability. It provides, in pertinent part, that “[e]very person who, directly or indirectly, controls any person liable under any provision of this chapter ... shall also be liable jointly and severally with and to the same extent as such controlled person....” 15 U.S.C. § 78t(a). B Rule 9(b) provides: In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. (Emphasis added). Section 10(b) claims sound in fraud. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S.Ct."
},
{
"docid": "13793676",
"title": "",
"text": "the complaint does not allege specific instances of sales to customers in which revenue was recognized improperly. As we noted above, that level of specificity is not required. Finally, Deloitte points out that Merisel disclosed its revenue recognition policy, as quoted in the complaint. The complaint goes on to allege, however, that the company’s actions were contrary to its stated policy. We hold that the allegations against Deloitte should not have been dismissed. CONCLUSION We reverse the district court’s dismissal of the complaint, and remand for further proceedings. . Section 10(b) makes it unlawful “[t]o use or employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe.” 15 U.S.C. § 78j(b). Rule 10b-5, adopted by the SEC in 1942, similarly provides It shall be unlawful for any person, directly or indirectly, ... (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c)To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 CFR § 240.1 Ob-5. Section 20(a) provides: Every person who, directly or indirectly, controls any person liable under any provision of this title or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. 15 U.S.C. § 78t(a). . 15 U.S.C. § 78u-4(b)(2) now requires that in securities fraud actions \"the complaint shall, with respect to each act or omission alleged to violate this"
},
{
"docid": "22411147",
"title": "",
"text": "not be saved by any amendment.” Livid Holdings, 416 F.3d at 946. A Section 10(b) of the Securities Exchange Act of 1934 makes it unlawful for “any person ... [t]o use or employ, in connection with the purchase or sale of any security registered on a national securities exchange ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 15 U.S.C. § 78j(b). One such rule promulgated under the Act is SEC Rule 10b-5, which provides, inter alia, “It shall be unlawful for any person ... [t]o engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” 17 C.F.R. § 240.10b-5(e). Section 20(a) of the Act makes certain “controlling” individuals also liable for violations of section 10(b) and its underlying regulations. Specifically, section 20(a) provides: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. 15 U.S.C. § 78t(a). Thus, a defendant employee of a corporation who has violated the securities laws will be jointly and severally liable to the plaintiff, as long as the plaintiff demonstrates “a primary violation of federal securities law” and that “the defendant exercised actual power or control over the primary violator.” No. 84 Employer-Teamster Joint Council Pension Trust Fund v. Am. W. Holding Corp. (“America West ”), 320 F.3d 920, 945 (9th Cir.2003) (quoting Howard v. Everex Sys., Inc., 228 F.3d 1057, 1065 (9th Cir.2000)) (quotation marks omitted); Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1161 (9th Cir.1996)."
},
{
"docid": "2488756",
"title": "",
"text": "or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. The respondents claim that the Jaysons would be liable for the actions of King under 15 U.S.C. § 78j as “controlling persons” under 15 U.S.C. § 78t, which provides in relevant part that: (a) Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. . NASD Code § 15 provides as follows: No dispute, claim, or controversy shall be eligible for submission to arbitration under this Code where six (6) years have elapsed from the occurrence or event giving rise to the act or dispute, claim or controversy. This section shall not extend applicable statutes of limitations, nor shall it apply to any case which is directed to arbitration by a court of competent jurisdiction.. . Because we find that subject matter jurisdiction is lacking, we do not need to decide whether the FAA gives federal courts the power to stay arbitration proceedings. While § 3 of the FAA gives federal courts the power to stay trials pending arbitration, we note that a number of courts have held that, in appropriate circumstances, § 4 of the FAA may be applied to stay or enjoin arbitration proceedings. See, e.g., Societe Generate de Surveillance, S.A. v. Raytheon European Management & Sys. Co., 643 F.2d 863, 868 (1st Cir.1981); L.F. Rothschild & Co. v. Katz, 702 F.Supp. 464, 468 (S.D.N.Y.1988). . See supra note 1 for text of 15 U.S.C. § 78t. . FAA § 4 reads"
},
{
"docid": "2558493",
"title": "",
"text": "entry of appropriate judgment ; otherwise affirmed. . § 78j. Manipulative and deceptive devices It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— * * !¡í * * (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. . § 78t. Liabilities of controlling persons (a) Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. . It should be noted at the outset that the discussion of the liability of Lord, Elpac and P.A.W. is rendered wholly academic by plaintiff’s choice of the remedy of rescission which is available only against Burr, the seller of the securities. . Although Gordon urges Mack v. Latta, 178 N.Y. 525, 71 N.E. 97 (1904), as authority for his position and the appellees dispute its applicability, we need not decide among their competing interpretations of Mach. The appellees argue that Mach holds no more than that a court sitting in equity will permit joinder of an action for damages against tortfeasors not in privity with the defrauded party, and a bill for rescission against the fraudulent seller. Under their view, then, the case deals with a procedural issue (joinder), not the substantive problem of the persons against whom a bill in rescission may lie. This may well capture what the Made court"
},
{
"docid": "12181355",
"title": "",
"text": "proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). This action seeks redress for alleged violations of Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934, and Rule 10b-5, promulgated by the Securities and Exchange Commission (“SEC”). Section 10(b) makes it unlawful: to use or employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe. 15 U.S.C. § 78j(b). Rule 10b-5, adopted by the SEC in 1942, similarly provides: it shall be unlawful for any person, directly or indirectly: (a) to employ any device, scheme, or artifice to defraud, (b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (e) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 CFR § 240.10b-5. Section 20(a) provides: every person who, directly or indirectly, controls any person liable under any provision of this title or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person actéd in good faith and did not directly or indirectly in-duee the act or acts constituting the violation or cause of action. 15 U.S.C. § 78t(a). To establish a securities fraud under these laws, a party must show: (1) a material misrepresentation or omission of fact; (2) scienter; (3) a connection with the purchase or sale of a security; (4) transaction and loss causation; and (5) economic loss (damages). In re Daou Systems Inc., 411 F.3d 1006, 1014 (9th Cir.2005) (citing Dura Pharms., Inc. v."
},
{
"docid": "22332673",
"title": "",
"text": "and, most importantly, it appears that plaintiffs had a reasonable chance of successfully stating a claim if given another opportunity. REVERSED and REMANDED. . Aspeon was formerly known as Javelin Systems, Inc. . The restatement announced a decrease in reported revenue of $269,000, a reduction in gross profit of $78,700, and net income of $.05 per share for the quarter, compared with previously reported net income of $.07 per share for the quarter. . The restatement demonstrated a decrease in reported \"other income\" of $259,800, a reduction in reported net income of $186,000, a reduction in income from operations' of $440,000, and a reduction in net income of $269,000. . The act in part makes it unlawful: To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. 15 U.S.C. § 78j(b). . The section, targeting \"controlling persons,” states that: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly in duce the act or acts constituting the violation or cause of action. 15 U.S.C. § 78t(a). . The rule provides that: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a)To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under"
},
{
"docid": "12738872",
"title": "",
"text": "of interstate commerce or of the mails, or of any facility of any national securities exchange— (a) To effect a short sale, or to use or employ any stop-loss order in connection with the purchase or sale, of any security registered on a national securities exchange, in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. . 15 U.S.C.A., § 78t — Liabilities of Controlling Persons: (a) Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. (b) It shall be unlawful for any person, directly or indirectly, to do any act or thing which it would be unlawful for such person to do under the provisions of this chapter or any rule or regulation thereunder through or by means of any other person. (c) It shall be unlawful for any director or officer of, or any owner of any securities issued by, any issuer required to file any document, report, or information under this chapter or any rule or regulation thereunder without just cause to hinder, delay, or obstruct the making or filing of any such document, report, or information. . 17 C.F.R., § 240.10(b)-5 (1970) : Rule 10(b) 5. Employment of Manipulative and Deceptive Devices. It shall be unlawful for any person, directly or indirectly, by"
},
{
"docid": "13624870",
"title": "",
"text": "10(b) provides: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange — * * * (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. Rule 10b-5 adds: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. Section 20(a) reads: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. . Defendants refer to their motions as \"motions to dismiss”; however, to the extent that Defendants seek only to strike \"from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter,” they shall be construed as “motions to strike” under Fed. R.Civ.Pro. 12(f), instead of \"motions to"
},
{
"docid": "22805165",
"title": "",
"text": "We reverse the district court’s holding with respect to materiality, and remand for further consideration of the scienter allegations and the § 20(a) claim. . Section 10 of the Exchange Act provides, in relevant part: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [Securities and Exchange] Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. 15 U.S.C. § 78j(b). . Section 20(a) of the Exchange Act provides, in relevant part: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. 15 U.S.C. § 78t(a). .Rule 10b-5, entitled “Employment of manipulative or deceptive device,” makes it unlawful “[t]o make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.” 17 C.F.R. § 240.10b-5. . Generally Accepted Accounting Principles (\"GAAP”) are the official standards adopted by the American Institute of Certified Public Accountants (the \"AICPA”), a private professional association, through three successor groups it established: the Committee on Accounting Procedure, the Accounting Principles Board (the \"APB”), and the Financial Accounting Standards Board (the \"FASB”). See PNC Bancorp, Inc. v. Commissioner of Internal Revenue, 212 F.3d 822, 825 n. 1 (3d Cir.2000); Amerada Hess Pipeline Corp. v. Federal Energy"
},
{
"docid": "15727993",
"title": "",
"text": "security) registered pursuant to Section 781 of this Act. Rule 14a-9 accordingly prohibits “solicitation ... by means of any proxy statement [or] form of proxy ... containing any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading.... ” Count Two of the Second Amended Complaint alleges that the Investor Group violated Section 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5. Section 10(b) states: It shall be unlawful for any person ... [t]o use or employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. Rule 10b-5(b) clarifies that “[i]t shall be unlawful for any person ... [t]o-make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading....” The Shareholders’ claim under Rule 10b-5 alleges not only misrepresentations and omissions, but - also the Investor Group’s failure to update information that became misleading in light of the alleged negotiations between RCPI and NBC/GE. Count Three of the Second Amended Complaint alleges that certain individual defendants violated Section 20(a) of the Securities Exchange Act, 15 U.S.C. § 78t, which provides that “[e]very person who ... controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person ... unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action.” At the pleading stage, the elements"
},
{
"docid": "2001815",
"title": "",
"text": "prejudice. . First Montauk attaches some exhibits to its filing. This Court, however, is not relying on those exhibits in making its determination. Rather, I will address the merits of the arguments presented. . The complaint states a claim for section 3402; however, that provision covers when a represented person is bound by a signature. Provision 3403 covers unauthorized signatures. Thus, it seems that plaintiffs meant to state a claim under section 3403, not section 3402. . Specifically, the statute reads: (a)Joint and several liability; good faith defense Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. 15 U.S.C. § 78t (a). The term \"control” is further defined under the implementing regulations as meaning \"the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person.\" 17 C.F.R. § 230.405. . Specifically, the statute reads: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange — ■ (a) To effect a short sale, or to use or employ any stop-loss order in connection with the purchase or sale, of any security registered on a national securities exchange, in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. (b)To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as"
},
{
"docid": "7725231",
"title": "",
"text": "any security ... any manipulative or deceptive device or contrivance in contravention of [SEC] rules and regulations.” 15 U.S.C. § 78j(b). Rule 10b-5 promulgated by the SEC proscribes the “employ[ment of] any device, scheme, or artifice to defraud” and the “makfing of] any untrue statement of a material fact or [the omission of] a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.” 17 C.F.R. § 240.10b-5. It is well-settled that “[t]o allege securities fraud under Rule 10b-5, a plaintiff must show: 1) a misstatement or omission, 2) of material fact, 3) made with scienter, 4) on which plaintiff relied, 5) that proximately caused his injury.” Bryant, 187 F.3d at 1281 (citing Ross v. Bank South, N.A., 885 F.2d 723, 728 (11th Cir.1989) (en banc)). Plaintiffs bring their second claim— against the Individual Defendants only— under Section 20(a) of the Exchange Act (15 U.S.C. § 78t(a)), which provides for joint and several liability of “controlling persons” of persons hable for a securities violation. This section provides in full: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. 15 U.S.C. § 78t(a). A “controlling person” has been defined in this circuit as a person who “ ‘had the power to control the general affairs of the entity primarily hable at the time the entity violated the securities laws ... [and] had the requisite power to directly or indirectly control or influence the specific corporate policy which resulted in the primary liability.’” Brown v. Enstar Group, Inc., 84 F.3d 393, 396 (11th Cir.1996) (quoting Brown v. Mendel, 864 F.Supp. 1138, 1145 (M.D.Ala.1994)). C. Federal Rule of Civil Procedure 9(b) and The"
},
{
"docid": "2488755",
"title": "",
"text": "nature of the dispute provides the necessary subject matter jurisdiction. Prudential-Bache Sec., 966 F.2d at 988; Valenzuela Bock, 696 F.Supp. at 960-64. Accordingly, we conclude that, because neither the petition nor the counterclaim sat isfies the well-pleaded complaint rule, both must be dismissed for lack of subject matter jurisdiction. III. Conclusion To summarize: 1. We affirm the district court’s decision to dismiss appellants’ petition to stay arbitration and appellees’ counter-claim to compel arbitration for lack of subject matter jurisdiction. 2. Because we find that subject matter jurisdiction was lacking in this case, we do not address the district court’s alternative ground for dismissing the petition, that the issue of timeliness is a matter for the arbitrator, not the courts, to decide. . 15 U.S.C. § 78j provides in relevant part: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange ... (b) [t]o use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. The respondents claim that the Jaysons would be liable for the actions of King under 15 U.S.C. § 78j as “controlling persons” under 15 U.S.C. § 78t, which provides in relevant part that: (a) Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. . NASD Code § 15 provides as follows: No dispute, claim, or controversy shall be"
},
{
"docid": "22162244",
"title": "",
"text": "the United States.” 28 U.S.C. § 1291 (1988). . This section provides: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. 15 U.S.C. § 78t(a) (1988). . Section 10(b) of the Securities Exchange Act of 1934 makes it unlawful for any person directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative device or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. 15 U.S.C. § 78j(b) (1988). . Rule 10b-5 provides that it is unlawful for any person directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange. (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 C.F.R. § 240.10b-5 (1991). . An omitted fact is material if there is a \"substantial likelihood that, under all the circumstances, the omitted fact would have assumed actual significance in the deliberations of"
},
{
"docid": "22996688",
"title": "",
"text": "commerce or of the mails, or of any facility of any national securities exchange— To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. Section 20(a), 15 U.S.C. Section 78t, provides: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. At all times relevant to this action, Section 6, 15 U.S.C. Section 78f, read, in pertinent part: (a) Any exchange may be registered with the Commission as a national securities exchange under the terms and conditions hereinafter provided in this section, by filing a registration statement in such form as the Commission may prescribe, containing the agreements, setting forth the information, and accompanied by the documents, below specified: (1) An agreement (which shall not be construed as a waiver of any constitutional right or any right to contest the validity of any rule or regulation) to comply, and to enforce so far as is within its powers compliance by its members, with the provisions of this chapter, and any amendment thereto and any rule or regulation made or to be made thereunder!.] . That section provides: An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the"
},
{
"docid": "7006943",
"title": "",
"text": "the public interest or for the protection of investors.” 15 U.S.C. § 78j(b); see also Tellabs, 551 U.S. at 318, 127 S.Ct. 2499. Pursuant to this law, SEC Rule 10b-5 implements Section 10(b) by making it unlawful: (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state-a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, or ■ ; (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 C.F.R. § 240.10b-5. As noted above, the six elements of a 10b-5 claim are: “(1) a material misrepresentation or omission; (2) scienter, or a wrongful state of mind; (3) in connection with the purchase or sale of a security; (4) reliance; (5) economic loss; and (6) loss causation.” Abiomed, 778 F.3d at 240. Claims brought under Section 20(a) of the Act, 15 U.S.C. § 78t(a), are derivative of 10b-5 claims. Hill, 638 F.3d at 53. Specifically, once any “person” is found liable for violating the Securities Exchange Act’s substantive provisions, [e]very person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is ¡liable, unless-the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. Id. (quoting 15 U.S.C. § 78t(a)), In moving to dismiss Plaintiffs’ complaint, Defendants argue .that the complaint fails to adequately allege actionable material misrepresentations or omissions, a strong inference of scienter, loss causation, and control-person liability. (Docket No. 56.) Defendants challenge the adequacy of the complaint by systematically going through each of those arguments in order, starting with the issue of whether Plaintiffs"
},
{
"docid": "22785880",
"title": "",
"text": "state law claims. In fact, it would be charitable to characterize the relationship of the federal and state claims as involving even a \"loose” nexus. Id. at 763. . Section 10(b) of the Securities Exchange Act of 1934 provides: It shall be unlawful for any person, directly or indirectly,‘by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. 15 U.S.C. § 78j(b). ■ .Section 20(a) of the Securities Exchange Act of 1934 provides: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled .person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. 15 U.S.C. § 78t(a). . Furthermore, many plaintiffs had more than one claim stemming from the conduct of Prudential’s sales agents. For example, named plaintiff Nicholson alleged churning, vanishing premium and investment plan claims, while named plaintiff Dorfner alleged churning and vanishing premium claims. See supra note 11. . Section 1367 provides: (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute,, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that arc so related to claims in the action within - such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction"
},
{
"docid": "22847939",
"title": "",
"text": "revenue was recognized improperly. As we noted above, that level of specificity is not required. Finally, Deloitte points out that Merisel disclosed its revenue recognition policy, as quoted in the complaint. The complaint goes on to allege, however, that the company’s actions, were contrary to its stated policy. We hold that the allegations against De-loitte should not have been dismissed. CONCLUSION We reverse the district court’s dismissal of the complaint, and remand for further proceedings. . Section 10(b) makes it unlawful \"[t]o use or employ, in connection with the purchase or sale of any security ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe.” 15 U.S.C. § 78j(b). Rule 10b-5, adopted by the SEC in 1942, similarly provides It shall be unlawful for any person, directly or indirectly, ... (a)To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security. 17 CFR§ 240.10b-5. Section 20(a) provides: Every person who, directly or indirectly, controls any person liable under any provision of this title or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. 15 U.S.C. § 78t(a). . 15 U.S.C. § 78u-4(b)(2) now requires that in securities fraud actions “the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted"
},
{
"docid": "14769429",
"title": "",
"text": "any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contraven-' tion of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. 15 U.S.C. § 78j(b) (1982). See 17 C.F.R. 240.-10b-5 (1985). Count 10, which alleges a violation of § 29(b) of the 1934 Act, 15 U.S.C. § 78aa(b) (1982), was not included in the district court’s list of those counts that were tried. Count 6, which alleges a violation of § 17(a) of the 1933 Act, 15 U.S.C. § 77q (1982), was included in the court’s list, but no findings of fact or conclusions of law were rendered with respect to this count . Section 15 provides: Every person who, by or through stock ownership, agency, or otherwise, or who, pursuant to or in connection with an agreement or understanding with one or more other persons by or through stock ownership, agency, or otherwise, controls any person liable under sections 77k or 771 of this title, shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person had no knowledge of or reasonable ground to believe in the existence of the facts by reason of which the liability of the controlled person is alleged to exist. 15 U.S.C. § llo (1982). Section 20(a) provides: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. 18 U.S.C. § 78t(a). . In Metge, the court approved a two-point test used in determining controlling person liability. The plaintiff must establish"
}
] |
600748 | other hand, argues that its sale of leased coolers represented so small a proportion of its normal business as to forbid the conclusion that they were held primarily for sale. Consequently, it argues, they were not properly includible in inventory and were not excluded from the coverage of § 117(j). The special treatment afforded to capital gains and sought by the plaintiff herein can be justified only if the sales in question produced increment to the taxpayer distinguishable in its' essential characteristics from ordinary income. Congress intended, in enacting the capital gains provisions, to deal with injustices resulting from taxation, at graduated yearly rates, of gains attributable to long-term accretions or conversions for purpose of reinvestment. See REDACTED d 263; 59 Yale L.J. 837, 1057 (1950); cf. Harriss v. Commissioner, 2 Cir., 1944, 143 F.2d 279. Depreciable property was excluded from this protected category. Int.Rev.Code of 1939, 117(a) (1). But gradual appreciations in value of such property frequently permitted realizations of gain over the depreciated base which were virtually eliminated by attributing them to a single year. To ameliorate the resultant hardship, Congress enacted the-special remedial provisions of § 117(j) (1). See H. R. Rep. No, 2333, 77th Cong. 2d Sess. 54 (1942). The limitations on the applicability' of § 117(j) (1) must be interpreted ill the light of this Congressional intent. An initial problem of interpretation is presented by the statutory exclusion of assets held “primarily” for sale. Plaintiff contends that his | [
{
"docid": "22162091",
"title": "",
"text": "BONE, Circuit Judge. The question to be determined by the petitions for review of a decision of the Tax Court is whether that court erred in determining that the proceeds from the sale of certain houses by the Rollingwood Corporation should be taxed as ordinary income instead of gains from the sale of capital assets. The applicable statutory provision is Section 117(j) of Title 26 U.S.C.A., as added by 'Section 151(b) of the Revenue Act of 1942, which provides in part: “(j) Gains and losses from involuntary conversion and from the sale or exchange of certain property used in the trade or business “(1) Definition of property used in the trade or business. For the purposes of this subsection, the term ‘property used in the trade or business’ means property used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 23(1), held for more than 6 months, and real property used in the trade or business, held for more than 6 months, which is not (A) property of a kind which would properly be includible in the inventory of the taxpayer if on hand at the close of the taxable year, or (B) property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business. Such term also includes timber with respect to which subsection (k) (1) or (2) is applicable.” The case was presented to the Tax Court on stipulated facts, a summary of which follows: Prior to December 7, 1941 David Bohan-non, one of the petitioners, was engaged in the real estate business; the business of subdividing and selling real property; and in the business of constructing homes. After the outbreak of World War II he disbanded his sales force and devoted his time and attention to war housing projects including the Rollingwood Project. Prior to the incorporation of the Rollingwood Corporation (referred to herein as Roll-ingwood) Bohannon was induced by the General Manager of the Richmond shipyards to sponsor a single family dwelling project in Richmond, California. Richmond and the"
}
] | [
{
"docid": "14242548",
"title": "",
"text": "business to be treated as capital gains. House Report No. 2333, 77th Cong., 1st sess., to accompany the Revenue Bill of 1942 (p. 45), explained the insertion of this provision: Under the existing law, the gain or loss from the sale or exchange of depreciable property is not treated as a capital gain or capital loss, but as an ordinary gain or an ordinary loss. This rule was originally inserted as a relief provision to enable corporations to have the full benefit of a loss from the sale of machinery, instead of being limited by'the capital loss provisions, which would permit it only a certain percentage of the loss. It was felt at that time that the taxpayer should not be denied the full loss because it sold the property at a loss instead of abandoning the property. While this rule provided relief in case a loss was realized, it appears that many taxpayers are able to dispose of their depreciable property at a gain over its depreciated cost. To treat such a gain as an ordinary gain will result in an undue hardship to the taxpayer. * * * Albright v. United States, 173 Fed. (2d) 339, considered the question of whether the normal sale of livestock, for the purpose of maintaining his herd at a regular size, by a farmer whose principal, income was derived from the sale of dairy products and hogs could be treated as the sale of capital assets under section 117 (j). In deciding that the provisions of section 117 (j) were applicable, the court held that the animals culled from the herd were actually used in the taxpayer’s business and were not held primarily for sale to customers in the ordinary course of his trade or business. The test used by the court was that: In order for the taxpayer to come within the provisions of section 117 (j) permitting him to treat the sales from his dairy and breeding herds as sales of capital assets, the burden is upon him to show * * * that the animals were not held by"
},
{
"docid": "23125570",
"title": "",
"text": "until 1947, when the so-called special ruling was issued in response to complaints ol the dairy industry that the Commissionel was saying one thing and doing another, that the interpretation now placed upon section 117(j) was made to apply to-so-, called normal sales from dairy herds. Section 117(j) was intended as a relief measure applicable alike to all taxpayers' within its provisions. Leland Hazard v. Commissioner; 7 T.C. 372. That it was so intended is clearly expressed in the report of the Committees of the House of Representatives and of the Senate in charge of the bill. See H. Rep. No. 2333, 77th Cong., 2d Sess., pp. 53-54 (1942-2 Cum. Bull. 372, 415), and S. Rep.. No. 1631, 77th Cong., 2d Sess., p. 50 (1942-2 Cum.Bull. 504, 545). The section provided an entirely new method of reporting gains and losses on the sale of noncapital assets used in thetrqde -or. business of the taxpayer. The amendment permits the taxpayer to deduct in full the net loss resulting- from transactions within the purview of the section and to report the net gain only to the extent of 50 per cent. Nothing in the language of the Act indicates an intention on the part of Congress to deny the relief granted by the section to any taxpayers whose transactions meet the prescribed conditions-The Commissioner has ruled that livestock held by a farmer for - dairy, breeding, or draft purposes are, while so held and used, depreciable assets, not primarily held for sale to customers in the ordinary course of his business. Nothing in the language of the section justifies the inference that a farmer should be denied the right to treat the profits received from the sales of such livestock when they are no longer profitable or fit for use in the farmer’s business as productive of capital gains and not of ordinary income. This, however, is the effect of the ruling relied on by the Government. In this case the taxpayer testified that he tried to maintain an average herd of 36 dairy cattle, because the size of his farm, its"
},
{
"docid": "3792181",
"title": "",
"text": "AUGUSTUS N. HAND, Circuit Judge.. The petitioner, a professional playwright, is the co-author of the plays: “My Sister Eileen” and “The Dough Girls” which were copyrighted in his name. After the plays had appeared on Broadway, he and his co-authors sold the exclusive motion picture rights in them to certain motion picture corporations, the price to be paid, over a period of several years. The petitioner treated the income received from this-source in the year 1943 as a gain from the-sale of a capital asset. The Commissioner-assessed the income so received as current income rather than as a capital gain andi the Tax Court sustained his assessment.. Petitioner appeals. Both parties are now agreed that the-transaction giving rise to this income was-a sale, that the asset sold was depreciable and had been held for more than six months. and that the rights sold did not constitute a capital asset within the meaning of §.; 117(a)(1) of the Internal Revenue Code, 26 U.S.C.A. § 117(a)(1). However, § 117(j) of the Code treats certain sales defined in § 117(j)(l) as if they were sales of capital assets though not within the terms of § 117(a)(1), and the petitioner contends that this transaction qualifies for such treatment by meeting the requirements of § 117(j)(l) which reads as follows: “Gains and losses from involuntary conversion and from the sale or exchange of certain property used in the trade or business. “(1) Definition of property used in the trade or business. For the purposes of this subsection, the term ‘property used in the trade or business’ means property used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 23(1), held for more than 6 months, and real property used in the trade or business, held for more than 6 months, which is not (A) property of a kind which would properly be includible in the inventory of the taxpayer if on hand at the close of the taxable year, or (B) property held by the taxpayer primarily for sale to customers in the ordinary course"
},
{
"docid": "22729281",
"title": "",
"text": "is not within the exclusions of § 117 (a). Admittedly, petitioner’s corn futures do not come within the literal language of the exclusions set out in that section. They were not stock in trade, actual inventory, property held for sale to customers or depreciable property used in a trade or business. But the capital-asset provision of § 117 must not be so broadly applied as to defeat rather than further the purpose of Congress. Burnet v. Harmel, 287 U. S. 103,108. Congress intended that profits and losses arising from the everyday operation of a business be considered as ordinary income or loss rather than capital gain or loss. The preferential treatment provided by § 117 applies to transactions in property which are not the normal source of business income. It was intended “to relieve the taxpayer from . . . excessive tax burdens on gains resulting from a conversion of capital investments, and to remove the deterrent effect of those burdens on such conversions.” Burnet v. Harmel, 287 U. S., at 106. Since this section is an exception from the normal tax requirements of the Internal Revenue Code, the definition of a capital asset must be narrowly applied and its exclusions interpreted broadly. This is necessary to effectuate the basic congressional purpose. This Court has always construed narrowly the term “capital assets” in § 117. See Hort v. Commissioner, 313 U. S. 28, 31; Kieselbach v. Commissioner, 317 U. S. 399, 403. The problem of the appropriate tax treatment of hedging transactions first arose under the 1934 Tax Code revision. Thereafter the Treasury issued G. C. M. 17322, supra, distinguishing speculative transactions in commodity futures from hedging transactions. It held that hedging transactions were essentially to be regarded as insurance rather than a dealing in capital assets and that gains and losses therefrom were ordinary business gains and losses. The interpretation outlined in this memorandum has been consistently followed by the courts as well as by the Commissioner. While it is true that this Court has not passed on its validity, it has been well recognized for 20 years; and"
},
{
"docid": "7007607",
"title": "",
"text": "mean generally “property held by the taxpayer”. Excluded from this definition, however, are stock in trade; inventory property; property held primarily for sale in the ordinary course of business; property used in the trade or business, subject to the depreciation allowance; and certain other described property. Inasmuch as ranching is a trade or business, livestock, under § 1221, is outside the definition of capital assets whenever it is inventory property or is “held * * * primarily for sale” or is “used” in the business and subject to the depreciation allowance. § 1221, however, does not stand alone. Accompanying it is § 1231 which relates to “property used in the trade or business” and provides capital gains treatment for net gains realized upon the disposition of this kind of property. § 1231(b) defines “property used in the trade or business” and § 1231(b) (3) has this definition specifically include “livestock, regardless of age, held by the taxpayer for draft, breeding, or dairy purposes”, for 12 months or more. The Regulations, of course, recognize the application of § 1231 to draft, breeding, or dairy livestock. Regs. § 1.1231-1 (c) (4). The term “livestock”, furthermore, “is given a broad, rather than a narrow interpretation”. Regs. § 1.1231-2(a). The History of the Statute. § 117 of the 1939 Code concerned capital gains and losses and corresponds with § 1201 et seq. of the 19S4 Code. § 117 (a) gave the same broad general definition to “capital assets” as does the present § 1221 and then excluded from that definition the same 4 categories of stock in trade, inventory property, property held primarily for sale to customers in the ordinary course of business, and property, used in the trade or business, subject to the depreciation allowance. (It contained, however, none of the present Code’s exclusionary references to discounted obligations, trade or business real estate, copyrights and the like, and accounts and notes receivable. The first three of these exclusions appeared in § 117(a) by way of amendments effected by the Revenue Acts of 1941, 1942 and 1950, respectively, and the last came only with"
},
{
"docid": "22145504",
"title": "",
"text": "one of the exclusions made to the definition of capital assets in § 117 (a)(1), it seems evident that \"property used in the trade or business,” to be eligible for capital-gains treatment, must satisfy the same general criteria as govern the definition of capital assets. The second change was apparently required by the fact that this Court had given a narrow construction to the term “sale or exchange.” See Helvering v. Flaccus Leather Co., 313 U. S. 247. But that change similarly had no effect on the basic notion of what constitutes a capital asset. While a capital asset is defined in §117 (a)(1) as “property held by the taxpayer,” it is evident that not everything which can be called property in the ordinary sense and which is outside the statutory exclusions qualifies as a capital asset. This Court has long held that the term “capital asset” is to be construed narrowly in accordance with the purpose of Congress to afford capital-gains treatment only in situations typically involving the realization of appreciation in value accrued over a substantial period of time, and thus to ameliorate the hardship of taxation of the entire gain in one year. Burnet v. Harmel, 287 U. S. 103, 106. Thus the Court has held that an unexpired lease, Hort v. Commissioner, 313 U. S. 28, corn futures, Corn Products Co. v. Commissioner, 350 U. S. 46, and oil payment rights, Commissioner v. P. G. Lake, Inc., 356 U. S. 260, are not capital assets even though they are concededly “property” interests in the ordinary sense. And see Surrey, Definitional Problems in Capital Gains Taxation, 69 Harv. L. Rev. 985, 987-989 and Note 7. In the present case, respondent’s right to use its transportation facilities was held to be a valuable property right compensable under the requirements of the Fifth Amendment. However, that right was not a capital asset within the meaning of §§ 117 (a)(1) and 117 (j). To be sure, respondent’s facilities were themselves property embraceable as capital assets under § 117 (j). Had the Government taken a fee in those facilities, or damaged"
},
{
"docid": "7007608",
"title": "",
"text": "of § 1231 to draft, breeding, or dairy livestock. Regs. § 1.1231-1 (c) (4). The term “livestock”, furthermore, “is given a broad, rather than a narrow interpretation”. Regs. § 1.1231-2(a). The History of the Statute. § 117 of the 1939 Code concerned capital gains and losses and corresponds with § 1201 et seq. of the 19S4 Code. § 117 (a) gave the same broad general definition to “capital assets” as does the present § 1221 and then excluded from that definition the same 4 categories of stock in trade, inventory property, property held primarily for sale to customers in the ordinary course of business, and property, used in the trade or business, subject to the depreciation allowance. (It contained, however, none of the present Code’s exclusionary references to discounted obligations, trade or business real estate, copyrights and the like, and accounts and notes receivable. The first three of these exclusions appeared in § 117(a) by way of amendments effected by the Revenue Acts of 1941, 1942 and 1950, respectively, and the last came only with the 1954 Code.) There was nothing in the 1939 Code, as originally enacted, which corresponded to § 1231 of the 1954 Code relating to property used in the trade or business. § 1231’s predecessor was § 117 (j) of the amended 1939 Code; it appeared, however, only when it was added by § 151 (b) of the Revenue Act of 1942. This new § 117 (j) defined “property used in the trade or business” to be property so used which was subject to the depreciation allowance and held for more than 6 months, and trade or business real property held for more than 6 months, which was not inventory property or held primarily for sale. (Subsection (j)’s inclusion of timber and of coal in the definition were added by the Act of February 25, 1944, 58 Stat. 46, 47, and by the Revenue Act of 1951, respectively, and its exclusion of copyrights, etc. from the definition was effected by the Revenue Act of 1950.) Not until the enactment of the Revenue Act of 1951, §"
},
{
"docid": "22145503",
"title": "",
"text": "gains and losses. Long-established principles govern the application of the more favorable tax rates to long-term capital gains: (1) There must be first, a “capital asset,” and second, a “sale or exchange” of that asset (§117 (a)); (2) “capital asset” is defined as “property held by the taxpayer,” with certain exceptions not here relevant (§ 117 (a) (1)); and (3) for purposes of calculating gain, the cost or other basis of the property (§113 (b)) must be subtracted from the amount realized on the sale or exchange (§ 111 (a)). Section 117 (j), added by the Revenue Act of 1942, effects no change in the nature of a capital asset. It accomplishes only two main objectives. First, it extends capital-gains treatment to real and depreciable personal property used in the trade or business, the type of property involved in this case. Second, it accords such treatment to involuntary conversions of both capital assets, strictly defined, and property used in the trade or business. Since the net effect of the first change is merely to remove one of the exclusions made to the definition of capital assets in § 117 (a)(1), it seems evident that \"property used in the trade or business,” to be eligible for capital-gains treatment, must satisfy the same general criteria as govern the definition of capital assets. The second change was apparently required by the fact that this Court had given a narrow construction to the term “sale or exchange.” See Helvering v. Flaccus Leather Co., 313 U. S. 247. But that change similarly had no effect on the basic notion of what constitutes a capital asset. While a capital asset is defined in §117 (a)(1) as “property held by the taxpayer,” it is evident that not everything which can be called property in the ordinary sense and which is outside the statutory exclusions qualifies as a capital asset. This Court has long held that the term “capital asset” is to be construed narrowly in accordance with the purpose of Congress to afford capital-gains treatment only in situations typically involving the realization of appreciation in value accrued"
},
{
"docid": "4706335",
"title": "",
"text": "F. Supp. 631, and in the Court of Appeals for the Sixth Circuit, 335 F. 2d 561. Because this treatment as capital gains conflicts with the result reached by other courts of appeals, we granted certiorari. 379 U. S. 944. We reverse. The more favorable capital gains treatment applied only to gain on “the sale or exchange of a capital asset.” § 117 (a)(4). Although original issue discount becomes property when the obligation falls due or is liquidated prior to maturity and § 117 (a)(1) defined a capital asset as “property held by the taxpayer,” we have held that “not everything which can be called property in the ordinary sense and which is outside the statutory exclusions qualifies as a capital asset. This Court has long held that the term 'capital asset’ is to be construed narrowly in accordance with the purpose of Congress to afford capital-gains treatment only-in situations typically involving the realization of appreciation in value accrued over a substantial period of time, and thus to ameliorate the hardship of taxation of the entire gain in one year.” Commissioner v. Gillette Motor Co., 364 U. S. 130, 134. See also Corn Products Co. v. Commissioner, 350 U. S. 46, 52. In applying this principle, this Court has consistently construed “capital asset” to exclude property representing income items or accretions to the value of a capital asset themselves properly attributable to income. Thus the Court has held that “capital asset” does not include compensation awarded a taxpayer as representing the fair rental value of its facilities during the period of their operation under government control, Commissioner v. Gillette Motor Co., supra; the amount of the proceeds of the sale of an orange grove attributable to the value of an unmatured annual crop, Watson v. Commissioner, 345 U. S. 544; an unexpired lease, Hort v. Commissioner,. 313 U. S. 28; and oil payment rights, Commissioner v. P. G. Lake, Inc., 356 U. S. 260. Similarly, earned original issue discount cannot be regarded as “typically involving the realization of appreciation in value accrued over a substantial period of time . ."
},
{
"docid": "22562301",
"title": "",
"text": "by which to measure salvage value. As has been aptly stated of Cohn, “It does not purport to set up an automatic hindsight re-evalution which becomes a self-executing redetermination of salvage value triggered by the sale of depreciable assets.” Motorlease Corp. v. United States, 215 F. Supp. 356, 363, rev’d, 334 F. 2d 617, pet. for cert. filed. In his brief in Cohn, the Commissioner did not rest his case on anything resembling his position here, but relied principally on the fact that the taxpayer himself had sought an adjustment of useful life and that, under the regulations, “if there is a rede-termination of useful life, the salvage value may be redetermined.” Brief for the United States, pp. 24-26, in Cohn v. United States, 259 F. 2d 371, quoted in Merritt, Government briefs in Cohn refute IRS disallowance of year-of-sale depreciation, 20 J. Taxation 156, 158 (1964). IV. Over the same extended period of years during which the foregoing administrative and judicial precedent was accumulating, Congress repeatedly re-enacted the depreciation provision without significant change. Thus, beyond the generally understood scope of the depreciation provision itself, the Commissioner’s prior long-standing and consistent administrative practice must be deemed to have received congressional approval. See, e. g., Cammarano v. United States, 358 U. S. 498, 510 — 511; United States v. Leslie Salt Co., 350 U. S. 383, 396-397; Helvering v. Winmill, 305 U. S. 79, 83. The legislative history in this area makes it abundantly clear that Congress was cognizant of the revenue possibilities in sales above depreciated cost. In 1942 Congress restored capital gain treatment to sales of depre-ciable assets. The accompanying House Report stated that it would be “an undue hardship” on taxpayers who were able to sell depreciable property at a gain over depreciated cost to treat such gain as ordinary income. H. R. Rep. No. 2333, 77th Cong., 2d Sess., 54 (1942). This, of course, is pro tanto the effect of disallowing depreciation in the year of sale above adjusted basis. It would be strange indeed, especially in light of the House Report, to conclude that Congress labored"
},
{
"docid": "4706334",
"title": "",
"text": "Mr. Justice Brennan delivered, the opinion of the Court. The question for decision is whether, under the Internal Revenue Code of 1939, certain gains realized by the taxpayer are taxable as capital gains or as ordinary income. The taxpayer bought noninterest-bearing promissory notes from the issuers at prices discounted below the face amounts. With one exception, each of the notes was held for more than six months, and, before maturity and in the year of purchase, was sold for less than its face amount but more than its issue price. It is conceded that the gain in each case was the economic equivalent of interest for the use of the money to the date of sale but the taxpayer reported the gains as capital gains. The Commissioner of Internal Revenue determined that the gains attributable to original issue discount were but interest in another form and therefore were taxable as ordinary income. Respondent paid the resulting deficiencies and in this suit for refund prevailed in the District Court for the Northern District of Ohio, 214 F. Supp. 631, and in the Court of Appeals for the Sixth Circuit, 335 F. 2d 561. Because this treatment as capital gains conflicts with the result reached by other courts of appeals, we granted certiorari. 379 U. S. 944. We reverse. The more favorable capital gains treatment applied only to gain on “the sale or exchange of a capital asset.” § 117 (a)(4). Although original issue discount becomes property when the obligation falls due or is liquidated prior to maturity and § 117 (a)(1) defined a capital asset as “property held by the taxpayer,” we have held that “not everything which can be called property in the ordinary sense and which is outside the statutory exclusions qualifies as a capital asset. This Court has long held that the term 'capital asset’ is to be construed narrowly in accordance with the purpose of Congress to afford capital-gains treatment only-in situations typically involving the realization of appreciation in value accrued over a substantial period of time, and thus to ameliorate the hardship of taxation of the"
},
{
"docid": "20018560",
"title": "",
"text": "literal language of the exclusions set out in that section. They were not stock in trade, actual inventory, property held for sale to customers or depreciable property used in a trade or business. But the capital-asset provision of § 117 must not be so broadly applied as to defeat rather than further the purpose of Congress. Burnet v. Harmel, 287 U.S. 103, 108, 53 S.Ct. 74, 76 L.Ed. 199. Congress intended that profits and losses arising from the everyday operation of a business be considered as ordinary income or loss rather than capital gain or loss. The preferential treatment provided by § 117 applies to transactions in property which are not the normal source of business income. It was intended ‘to relieve the taxpayer from * * * excessive tax burdens on gains resulting from a conversion of capital investments, and to remove the deterrent effect of those burdens on such conversions.’ Burnet v. Harmel, 287 U.S., at 106, 53 S.Ct. at 75. Since this section is an exception from the normal tax requirements of the Internal Revenue Code, the definition of a capital asset must be narrowly applied and its exclusions interpreted broadly. This is necessary to effectuate the basic congressional purpose. This Court has always construed narrowly the term ‘capital assets’ in § 117. See Hort v. Commissioner, 313 U.S. 28, 31, 61 S.Ct. 757, 758, 85 L.Ed. 1168; Kieselbach v. Commissioner, 317 U.S. 399, 403, 63 S.Ct. 303, 305, 87 L.Ed. 358.” Section 117(a) of the 1939 Code is now § 1221 of the 1954 Code. In Malat, supra, petitioner was part of a joint venture which bought a 45 acre tract of land. He claimed that the intended use was for an apartment project; the government claimed that the intended use was dual: either developing for rental purposes, or selling, whichever proved to be the more profitable. The District Court found the dual purpose, and that the property was therefore held “primarily” for sale to customers in the ordinary course of business, with “primarily” meaning “substantially.” The Supreme Court held that “primarily” meant just what it"
},
{
"docid": "8441207",
"title": "",
"text": "and to distribute the same as ordinary or liquidating dividends among the Shareholders before the trust expires by its terms.” (Exhibit 1.) The Commissioner of Internal Rev-énue taxed as ordinary income, gains realized by taxpayer, on land sales, from 1942 to 1950, inclusive. Having paid the assessed taxes, taxpayer sued for a refund on the theory that these gains .should have been taxed as long-term capital gains. The District Judge rejected taxpayer’s contentions and entered judgment for defendants in the three cases consolidated for trial. D.C., 121 F.Supp. 722. Though the District Judge made findings of fact, conclusions of law and filed a memorandum, Rule 52, Fed.Rules Civil Proe., 28 U.S.C.A., we are empowered to overturn his decision since the ultimate finding on which the judgment appealed rests is a conclusion of law, or a mixed one. Fritz v. Jarecki, 7 Cir., 1951, 189 F.2d 445. Tax law is littered with cases manifesting the constant struggle to capture the preferred treatment accorded capital gains and losses in contrast to ordinary income and loss transactions. Ascertainment of the definitive characteristics of a capital asset in a given factual situation, is one of the more substantial zones of difficulty. See e. g., Surrey and Warren, Federal Income Taxation, 519 (1955); Miller, The “Capital Asset” Concept: A Critique of Capital Gains Taxation, 59 Yale L.J. 837, 1057 (1950). In deceptively simple words § 117 (a) (1) defined capital assets as property held by the taxpayer, whether or not used in his trade or business, with the exception of several enumerated statutory exclusions of which this is a pertinent one : “ * * * property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business * * * ” * From its completion of the capítol building, at Austin, until sometime in 1912, taxpayer engaged in the cattle-ranching business on a large scale. D.C., 121 F. Supp. 722, stipulation of facts, T.R. 22. That business activity was abandoned upon becoming financially unsuccessful; the live stock was sold — (stipulation, T. R. 23), and it was"
},
{
"docid": "4495750",
"title": "",
"text": "ending September 20, 1944, which were reported as ordinary income, it has not at any time contended that this acreage represented a capital- asset.” III. (Abbreviated and not quoted) In July, 1944, plaintiff sold to Mrs. Snow 422.56 acres from the Rancho and contiguous to the Rolling Hills subdivision, for $90,000'. The cost basis was $23,636.93, the profit being $66,-363.07, and during the fiscal year from October 1, 1943 and ending September 30, 1944, plaintiff received on account the sum of $27,000. (Reported as installment pursuant to Section 44 (b) of the Internal Revenue 'Code [26 U.S.C.A. § 44(b)], In relation to the Snow sale, the corporation paid its October 1943-September 30, 1944 Income and Declared Value Excess-Profits Tax in the sum of $17,066.36 on the basis of doing a real estate business, and later filed its claim for $5,467.88 as overpayment on the ground that the gain realized was derived from the sale of either a capital asset by a corporation, § 117(a) (10), Internal Revenue Code, 26 U.S.C.A. § 117(a) (10), or of real property used in trade or business, § 117(j), Internal Revenue Code. The commissioner denied the claim, holding that the payment had been made on the correct basis. Suit followed, resulting in the district court’s upholding the commissioner’s view, and this appeal 'by taxpayer was made. The question for decision is whether the facts support the conclusion of law and judgment that the property was held primarily for sale to customers in the ordinary course of trade or business, § 117(j) (1) (B), Internal Revenue Code. It is sound law that holding an asset for many years indicates an intention to hold for investment, rather than for sale, The Merchants Nat’l Bank of Mobile v. Commissioner, 1950, 14 T.C. 1375, 1379, and the long period of holding assets without being disposed of violates the concept of an organized business with respect thereto. Mackall v. Commissioner, 1944, 3 T.C.M. 701; see also Loewenberg v. Commissioner, 1948, 7 T.C.M. 702. And as was said in Harriss v. Commissioner, 2 Cir., 1944, 143 F.2d 279, 280-281, “A hope,"
},
{
"docid": "14242546",
"title": "",
"text": "to customers in the ordinary course of his trade or business” and “property, used in the trade or business, of a character which is subject to the allowance for depreciation.” Admittedly, the property in question is not a capital asset because of these exclusionary clauses. The petitioner, however, argues that the payments that he received are taxable as capital gains under section 117 (j), which provides that “recognized gains upon sales or exchange of property used in the trade or business” and held for more than six months, “shall be considered as gains * * * from sales or exchanges of capital assets held for more than 6 months.” “Property used in the trade or business” is defined to mean (1) “property used in the trade or business, of a character which is subject to the allowance for depreciation,” and (2) real property used in the trade or business. But there is a difference between property used in the trade or business and property held primarily for sale to customers. These are two mutually exclusive purposes; property can not be held for use and for sale at the same time. Section 117 (a) (1), in its exclusionary clauses, recognizes this difference, the difference between, for example, machinery used in the business to manufacture goods and the goods manufactured which are held for sale to customers. “Property used in the trade or business, of a character which is subject to the allowance for depreciation” was first incorporated into section 117 as an exclusion from the definition of capital assets by the Revenue Act of 1938. Prior to that time, capital assets had been defined to exclude “stock in trade of the taxpayer or other property of a'kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business.” The Revenue Act of 1942 added section 117 (j) which allowed gains from the sale of depreciable property used in the trade or"
},
{
"docid": "3460232",
"title": "",
"text": "JERTBERG, Circuit Judge. This case involves deficiencies in income tax returns of petitioners assessed for the years 1950, 1951 and 1952. The sole question on this appeal is whether certain real estate (vacant unimproved lots) sold by petitioners during the years above stated was held by petitioners primarily for sale to customers in the ordinary course of petitioners’ trade or business. The Tax Court answered the question in the affirmative, holding that petitioners were engaged in the business of selling real estate, and that the gains realized from the sale of such property was subject to taxation as ordinary income. The petitioners contend that the decision of the Tax Court is clearly erroneous, and that the gains realized from the sale of such property are entitled to capital gain treatment under the provisions of Section 117 of the Internal Revenue Code of 1939, as amended. 26 U.S.C. 1952 Edition, § 117. Section 117(a)(1) excludes from the term “capital assets” held by a taxpayer property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business. Section 117(j) excludes from the definition of property used in the trade or business property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business. Ordinarily, whether specified property is held by the taxpayer primarily for sale to customers in the course of his trade or business is a question of fact. Many decisions of this Circuit so testify. Bistline v. United States, 9 Cir., 260 F.2d 77; Bistline v. United States, 9 Cir., 260 F.2d 80; United States v. Beard, 9 Cir., 260 F.2d 81; Pool v. Commissioner, 9 Cir., 251 F.2d 233; Achong v. Commissioner, 9 Cir., 246 F.2d 445; Stockton Harbor Industrial Co. v. Commissioner, 9 Cir., 216 F.2d 638; Rollingwood Corp. v. Commissioner, 9 Cir., 190 F.2d 263. The conclusion, however, that certain property is held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business is subject to reversal if the conclusion is clearly erroneous, or where, on"
},
{
"docid": "22562302",
"title": "",
"text": "beyond the generally understood scope of the depreciation provision itself, the Commissioner’s prior long-standing and consistent administrative practice must be deemed to have received congressional approval. See, e. g., Cammarano v. United States, 358 U. S. 498, 510 — 511; United States v. Leslie Salt Co., 350 U. S. 383, 396-397; Helvering v. Winmill, 305 U. S. 79, 83. The legislative history in this area makes it abundantly clear that Congress was cognizant of the revenue possibilities in sales above depreciated cost. In 1942 Congress restored capital gain treatment to sales of depre-ciable assets. The accompanying House Report stated that it would be “an undue hardship” on taxpayers who were able to sell depreciable property at a gain over depreciated cost to treat such gain as ordinary income. H. R. Rep. No. 2333, 77th Cong., 2d Sess., 54 (1942). This, of course, is pro tanto the effect of disallowing depreciation in the year of sale above adjusted basis. It would be strange indeed, especially in light of the House Report, to conclude that Congress labored to create a tax provision which, in application to depreciable property, could by administrative fiat be made applicable only to sales of assets for amounts exceeding their basis at the beginning of the year- of sale, and then only to the excess. In succeeding years Congress was repeatedly asked to enact legislation treating gains on sales of depreciated property as ordinary income; it declined to do so until 1962. In 1961, in his Tax Message to Congress, the President observed that existing law permitted taxpayers to depreciate assets below their market value and, upon sale, to treat the difference as capital gain. The Secretary of the Treasury concurred in this position. The exhibits appended not only contain no mention of the Commissioner’s power to require recalculation of depreciation in the year of sale, but refute the existence of such power. In example after example cited by the Treasury, the taxpayer had depreciated an asset, sold it for an amount in excess of its depreciated basis, and treated the difference as capital gain. The Treasury asserted"
},
{
"docid": "22459466",
"title": "",
"text": "course of business and should thus result in capital gains rather than in ordinary income. Section 323 of the bill so provides. “Your committee recognizes, however, that when the taxpayer keeps his accounts and makes his returns on the cash receipts and disbursements basis, the expenses of growing the unharvested crop or the unripe fruit will be deducted in full from ordinary income, while the entire proceeds from the sale of the crop, as such, will be viewed as a capital gain. Actually, of course, the true gain in such cases is the difference between that part of the selling price attributable to the crop or fruit and the expenses attributable to its production. Therefore, your committee’s bill provides that no deduction shall be allowed which is attributable to the production of such crops or fruit, but that the deductions so disallowed shall be included in the basis of the property for the purpose of computing the capital gain. “The provisions of this section are applicable to sales or other dispositions occurring in taxable years beginning after December 31, 1950. “The revenue loss under this provision is expected to be about $3 million annually.” S. Rep. No. 781, 82d Cong., 1st Sess. 47-48. Internal Revenue Code, as amended, 56- Stat. 846: “SEC. 117. CAPITAL GAINS AND LOSSES. “(j) Gains and Losses . . . From the Sale or Exchange op Certain Property Used in the Trade or Business.— “(1) Definition of property used in the trade or business. — • “For the purposes of this subsection, the term ‘property used in the trade or business’ means property used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 23 (1), held for more than 6 months, and real property used in the trade or business, held for more than 6 months, which is not (A) property of a kind which would properly be in-' cludible in the inventory of the taxpayer if on hand at the close of the taxable year, or (B) 'property held by the taxpayer primarily for sale"
},
{
"docid": "14242547",
"title": "",
"text": "purposes; property can not be held for use and for sale at the same time. Section 117 (a) (1), in its exclusionary clauses, recognizes this difference, the difference between, for example, machinery used in the business to manufacture goods and the goods manufactured which are held for sale to customers. “Property used in the trade or business, of a character which is subject to the allowance for depreciation” was first incorporated into section 117 as an exclusion from the definition of capital assets by the Revenue Act of 1938. Prior to that time, capital assets had been defined to exclude “stock in trade of the taxpayer or other property of a'kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business.” The Revenue Act of 1942 added section 117 (j) which allowed gains from the sale of depreciable property used in the trade or business to be treated as capital gains. House Report No. 2333, 77th Cong., 1st sess., to accompany the Revenue Bill of 1942 (p. 45), explained the insertion of this provision: Under the existing law, the gain or loss from the sale or exchange of depreciable property is not treated as a capital gain or capital loss, but as an ordinary gain or an ordinary loss. This rule was originally inserted as a relief provision to enable corporations to have the full benefit of a loss from the sale of machinery, instead of being limited by'the capital loss provisions, which would permit it only a certain percentage of the loss. It was felt at that time that the taxpayer should not be denied the full loss because it sold the property at a loss instead of abandoning the property. While this rule provided relief in case a loss was realized, it appears that many taxpayers are able to dispose of their depreciable property at a gain over its depreciated cost. To treat such a gain as"
},
{
"docid": "22459467",
"title": "",
"text": "beginning after December 31, 1950. “The revenue loss under this provision is expected to be about $3 million annually.” S. Rep. No. 781, 82d Cong., 1st Sess. 47-48. Internal Revenue Code, as amended, 56- Stat. 846: “SEC. 117. CAPITAL GAINS AND LOSSES. “(j) Gains and Losses . . . From the Sale or Exchange op Certain Property Used in the Trade or Business.— “(1) Definition of property used in the trade or business. — • “For the purposes of this subsection, the term ‘property used in the trade or business’ means property used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 23 (1), held for more than 6 months, and real property used in the trade or business, held for more than 6 months, which is not (A) property of a kind which would properly be in-' cludible in the inventory of the taxpayer if on hand at the close of the taxable year, or (B) 'property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business. “(2) General rule. — If, during the taxable year, the recognized gains upon sales or exchanges of property used in the trade or business . . . exceed the recognized losses from such sales, exchanges, and conversions, such gains and losses shall be considered as gains and losses from sales or exchanges of capital assets held for more than 6 months. If such gains do not exceed such losses, such gains and losses shall not be considered as gains and losses from sales or exchanges of capital assets. . . .” (Italics supplied.) See 26 U. S. C. §117 (j). “The production of fruit from orchards or groves constitutes a business, and section 117 (j) of the Code, supra, is applicable to the sale of an orchard or grove. The crops are produced with the primary purpose of selling the fruit to customers in the ordinary course of the business. Therefore, regardless of their stage of development, any gain realized from the sale of"
}
] |
235849 | judicial direction, presents a closer question. Compare Birnbaum v. Trussell, 347 F.2d 86, 88-89 (2 Cir. 1965), with Fanale v. Sheehy, supra, at 868-869, Haldane v. Chagnon, 345 F.2d 601, 604 (9 Cir. 1965), and Curry v. Ragan, supra, at 450; see Pierson v. Ray, supra, at 555-558. Defendant Schapiro, whose acts were those of an attorney performed in his professional capacity, did not act as a state official and therefore his conduct complained of was not action taken under color of state law within the meaning of the Civil Rights Act. Christman v. Pennsylvania, 275 F.Supp. 434, 435 (W.D.Pa.1967). He could not conspire with Judge Peterson who is immune under the Civil Rights Act. Haldane v. Chagnon, supra, at 604-605; REDACTED And it is not alleged that he conspired with anyone else. Plaintiff’s claim that defendants Benenati, David F. Lee, Jr., and Edward J. Lee, in refusing him access to the Supreme Court Library at Norwich on the days it was closed, deprived him of equal protection of the laws by denying him “an opportunity to a higher education”, is utterly frivolous; certainly it presents no substantial federal question. Flemming v. Adams, 377 F.2d 975, 977-978 (10 Cir. 1967), cert. denied, 389 U.S. 898 (1967). Finally, this Court wishes to make it crystal clear that its decision dismissing the instant action for lack of subject matter jurisdiction or, in the alternative, for failure of the complaint to state a claim upon | [
{
"docid": "22458791",
"title": "",
"text": "Chandler, 8 Cir., 124 F.2d 785. It is alleged, however, that in the performance of the acts complained of, each of the defendants acted as an officer of the Colorado state court, and for the purpose of considering the legal sufficiency of the complaint, we will assume the legal premise that the judge and the lawyers, acted under color of state law. See Moyer v. Peabody, 212 U.S. 78, 29 S.Ct. 235, 53 L.Ed. 410; Picking v. Pennsylvania, R. Co., supra, 3 Cir., 151 F.2d 240, at page 250. It is conceivable that persons, either individually or acting in concert might so use the state judicial process as to deprive a person of his property without due process of law, or oi equal protection of the laws, yet we are certain that to make out a cause of action under the Civil Rights Statutes, the state court proceedings must have been a complete nullity, with a purpose to deprive a person of his property without due process of law. To hold otherwise would open the door wide to every aggrieved litigant in a state court proceedings, and set the federal courts up as an arbiter of the coirectness of every state decision. “The Fourteenth Amendment did not alter the basic relations between the States and the national government.” Screws v. United States, supra, 325 U.S. at page /09, 65 S.Ct. at page 1039, 89 L.Ed. 1495, 162 A.L.R. 1330. Nor does it “assure uniformity of decisions or immunity from merely erroneous action * * * .” See Justice Frankfurter concurring in Snowden v. Hughes, 321 U.S. 1, 15, 64 S.Ct. 397, 404, 88 L.Ed. 497. See also Moyer v. Peabody, supra. It is shown upon the face of this complaint that the appellant regularly invoked the jurisdiction of the State Court, the case was tried, judgment was rendered, appealed to and affirmed by the Supreme Court of Colorado. Bottone v. Cattany, 115 Colo. 452, 174 P.2d 952. Without more, it is clear that the appellant was not denied due process of law or the equal protection of the law, cognizable"
}
] | [
{
"docid": "17534968",
"title": "",
"text": "While Plaintiff’s pleading is verbose, allegations, most pertinent to a claim under the Civil Rights Act, 42 U.S.C. § 1981 et seq., are-not set forth at all. This added requirement of Rule 8 is particularly applicable herein, since-facts which Plaintiff does allege with some specificity place her action outside-the usual realm of possible relief under the Civil Rights Act. Eight of her causes-of action relate to fraud allegedly practiced, and errors allegedly committed, by state court Judges and Justices. Judges- and Justices acting in their judicial capacities consistently have been held to-be immune under the Civil Rights Act. See Haldane v. Chagnon, 345 F.2d 601 (9th Cir. 1965). Private persons are named as defendants under the claim that they were-acting in an alleged conspiracy with the- state court Judges and Justices. Private persons named as defendants acting in ■any alleged conspiracy with state court •Judges and Justices who would be immune, could not be held liable, since they •are not conspiring with persons acting under .color of law “against whom [ Plaintiff] could state a valid claim” under 42 U.S.C. § 1985(3). Haldane v. Chagnon, •supra. Nor could these private persons be held liable under 42 U.S.C. § 1983 unless they were acting under color of law. Plaintiff does not show how this is •even conceivably possible under the test noted in United States v. Price, 383 U.S. 787, at p. 794, fn. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1965). It also appears that even if private persons are charged with conspiring •among themselves alone, the conspiracy •charged does not reach the proportion where it could be cognizable under the Civil Rights Act because it would not ■deprive Plaintiff of equal protection or •equal privileges and immunities. See Bryant v. Donnell, 239 FR.Supp. 681, 687-688 (W.D.Tenn.1965); Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951). Alleged injury to reputation, similar to that alleged by Plaintiff herein, was held to be no ground for relief under the Civil Rights Act in Temple v. Pergament, 235 F.Supp. 242 (D.N.J.1964), affirmed 343 F.2d 474 (3rd Cir. 1965). (See,"
},
{
"docid": "7262694",
"title": "",
"text": "him access to the Supreme Court Library at Norwich on the days it was closed, deprived him of equal protection of the laws by denying him “an opportunity to a higher education”, is utterly frivolous; certainly it presents no substantial federal question. Flemming v. Adams, 377 F.2d 975, 977-978 (10 Cir. 1967), cert. denied, 389 U.S. 898 (1967). Finally, this Court wishes to make it crystal clear that its decision dismissing the instant action for lack of subject matter jurisdiction or, in the alternative, for failure of the complaint to state a claim upon which relief can be granted, is not based upon plaintiff’s failure to exhaust state remedies — a claim raised by each of the defendants. See McNeese v. Board of Education, 373 U.S. 668 (1963); Monroe v. Pape, 365 U.S. 167, 183 (1961); Wright v. McMann, 387 F.2d 519 (2 Cir. 1967); Birnbaum v. Trussell, 371 F.2d 672, 680 (2 Cir. 1966) (concurring opinion); Powell v. Workmen’s Compensation Board, supra, at 135-136. Conclusion There is abroad in the land a notion that the Civil Rights Act has vested in the federal courts the function of an Ombudsman — to review any grievance, no matter how petty, stemming from the aggrieved party’s unsuccessful results in state court litigation. Nothing could be further from the Congressional purpose. Paraphrasing Judge Waterman’s apt observation in Powell v. Workmen’s Compensation Board, supra, at 137 (applied to the instant case): “Indeed, were we to hold this complaint sufficient, we would be inviting every party to a state proceeding angered at [adverse results in marital litigation] to file a complaint in this court reciting the history of his state case and concluding with a general allegation of conspiracy.” Recognizing that “courts are established to hear complaints and to listen to all those which may have substance, however small may be the proportion of those which have merit,” Wright v. McMann, supra, at 743 (concurring opinion), this Court holds that the complaint in the instant case, viewed in the light most favorable to plaintiff, utterly fails to raise any substantial federal question whatsoever. ORDER ORDERED"
},
{
"docid": "13108317",
"title": "",
"text": "of public policy to the end that the administration of justice may be independent and based on the free and unbiased convictions of the judge, uninfluenced by apprehension of personal consequences, it is a general rule that, where a judge has jurisdiction over the subject matter and the person, he is not liable civilly for acts done in the exercise of his judicial function, even though he acts erroneously, illegally, or irregularly, or even corruptly.” 164 F.2d 109. The doctrine of judicial immunity also applies to proceedings in which injunctive or other equitable relief is sought as well as to suits for money damages. The reasons for the judicial immunity rule apply regardless of the nature of the relief sought. Tate v. Arnold, 223 F.2d 782 (8th Cir. 1955); Mackay v. Nesbett, 285 F.Supp. 498 (D. Alaska, 1968); Rhodes v. Houston, 202 F.Supp. 624 (D.Neb.1962), affirmed, 309 F.2d 959 (8th Cir. 1962), cert. denied, 372 U.S. 909, 83 S.Ct. 724, 9 L.Ed.2d 719 (1963). Inasmuch as plaintiff’s complaint alleges relief under the Civil Rights Act, 42 U.S.C., Section 1983, it should be noted that the Civil Rights Act creates no exception to judicial immunity. Pierson v. Ray, supra. There is nothing in the legislative history of the Civil Rights Act which abrogates or in any way impairs the doctrine of judicial immunity. Byrne v. Kysar, 347 F.2d 734 (7th Cir. 1965), cert. denied, 383 U.S. 913, 86 S.Ct. 902, 15 L.Ed.2d 668 (1966), rehearing denied, 384 U.S. 914, 994, 86 S.Ct. 1891, 16 L.Ed.2d 1011 (1966). Judges and Justices acting in their judicial capacities consistently have been held to be immune from suit under the Civil Rights Act. Haldane v. Chagnon, 345 F.2d 601 (9th Cir. 1965); Agnew v. Moody, 330 F.2d 868 (9th Cir. 1964); Hurlburt v. Graham, 323 F.2d 723 (6th Cir. 1963); Jennings v. Nester, 217 F.2d 153 (7th Cir. 1954); Drusky v. Judges of the Supreme Court, 324 F.Supp. 332 (W.D.Pa.1971); Carpenter v. Oldham, 314 F.Supp. 1350 (W.D.Mo.1970); Hagan v. State of California, 265 F.Supp. 174 (C.D.Cal.1967). Inasmuch as the affidavits of Senior Judge Roy W."
},
{
"docid": "18367876",
"title": "",
"text": "to state a § 1983 claim upon which relief can be granted under the second method as well as the first. Assuming for the moment plaintiff could amend his complaint to allege a conspiracy between the public officials and the defendants he would still have to allege sufficient facts to overcome the immunity from liability courts have granted public officials in § 1983 suits. “Private persons cannot be' held liable for conspiracy under the Civil Rights Statutes if the other conspirators are state officials who are themselves immune to liability under the facts alleged.” Sykes v. California (Department of Motor Vehicles), 497 F.2d 197, 202 (9th Cir. 1974). See Haldane v. Chagnon, 345 F.2d 601, 604-605 (9th Cir. 1965). It is well established that judges are absolutely immune from liability for acts done in the performance of their judicial functions. Pierson v. Ray, 386 U.S. 547, 553-55, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Robinson v. McCorkle, 462 F.2d 111 (3rd Cir. 1972); Haldane v. Chagnon, 345 F.2d at 604. “The only exception to this sweeping cloak of immunity exists for acts done in ‘the clear absence of all jurisdiction.’ ” Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir. 1974). For an act to be done in the clear absence of all jurisdiction it must not be of a judicial nature. 500 F.2d at 63. Thus, plaintiff in this case must demonstrate that the superior court judge overstepped his judicial bounds in order to state a viable § 1983 cause of action based upon his participation in defendants’ activities. Given the facts as pleaded, however, it is highly unlikely plaintiff could show the judge was doing anything other than performing a routine judicial function when he issued the ex parte conservatorship order. Unlike judges, police officers only enjoy a qualified immunity for acts done in the performance of their official functions. Their immunity extends only to acts taken in good faith and upon a reasonable belief. Pierson v. Ray, 386 U.S. at 587, 87 S.Ct. 1213 (1967); Milton v. Nelson, 527 F.2d 1158, 1159 (9th Cir. 1976). Once it"
},
{
"docid": "12746097",
"title": "",
"text": "These cases have established that a civil rights action under Sections 1983 or 1985 will not lie against an ad ministrative agency of a state, such as the Department of Motor Vehicles. As to Sykes’ claims against Wilson, Ascue, Azlant, Bank of America, Morris Plan, and Salle, none of the amended complaint’s allegations state facts tending to show that any of these defendants acted “under color of state law or authority,” as both Sections 1983 and 1985 require. Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951); Marshall v. Sawyer, 301 F.2d 639, 646 (9th Cir. 1962); Cohen v. Norris, supra. Nor is this defect remedied by Sykes’ allegation that these private individuals were allegedly conspiring with state officials who were acting under color of state law. Private persons cannot be held liable for conspiracy under the Civil Rights Statutes if the other conspirators are state officials who are themselves immune to liability under the facts alleged. Haldane v. Chagnon, 345 F.2d 601, 604-605 (9th Cir. 1965); Stambler v. Dillon, 302 F. Supp. 1250 (S.D.N.Y.1969). The immunity of the district attorneys, Hoover, and California Department of Motor Vehicles therefore prevents Sykes from maintaining suit against the private defendants on the ground that they conspired with state officials acting under color of state law. Furthermore, as to Sykes’ claims against these defendants based on Section 1985, there is no showing of the racial or class-based discrimination essential to the successful prosecution of a claim under that Section. In Griffith v. Breckenridge, supra at 102, the Supreme Court held: “The constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law can be avoided by giving full effect to the congressional purpose — -by requiring, as an element of the cause of action, the kind of . invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.” (Footnotes omitted). Sykes’ complaint is typical of an increasing number of actions brought under the"
},
{
"docid": "15440027",
"title": "",
"text": "of conspiracy between private persons and public officials who are themselves immune from liability under the facts alleged are insufficient to establish liability of the private persons under color of state law for purposes of the Civil Rights Act.” Id. at 770. This conclusory language, however, comprised, at best, an alternative basis for the court’s result. Further, the Hansen court offered no rationale for its interpretation of the law. Similarly, in Brown v. Dunne, 409 F.2d 341 (7th Cir. 1969), the court ruled that private attorneys could not be joined as “wilful participants” in a conspiracy to deprive constitutional rights with public officials acting within “the ambit of their official function.” Id. at 344. Again, the court failed to provide any analysis supporting its decision. Finally, in French v. Corrigan, 432 F.2d 1211 (7th Cir. 1970), cert. denied, 401 U.S. 915, 91 S.Ct. 890, 27 L.Ed.2d 814 (1971), this court, although presented with facts similar to those in the instant case, never addressed the question of whether a claim can be stated against private persons for conspiracies with immune officials, merely stating that the acts of the private defendants were not done under color of law. Id. at 1214. A reading of all the cases from other circuits cited in note 4, supra, reveals that no reasons are given for their holdings. Instead, citation is given to Haldane v. Chagnon, 345 F.2d 601, 604 (9th Cir. 1965), which itself gave the question only perfunctory consideration. The continued validity of Haldane, if not already undercut by Price and Adickes, is questionable even in the Ninth Circuit. See Briley v. State of California, 564 F.2d 849, 858 n. 10 (9th Cir. 1977). . Whenever a judge acts in his official capacity, it is an action of the state. This does not mean, as defendants suggest, that all litigants who use state courts to enforce private claims and obtain judgments are subject to possible civil rights liability based solely on that use. Section 1983 does not create a remedy for every wrong committed under color of state law; only deprivation of rights secured"
},
{
"docid": "7262682",
"title": "",
"text": "Court for a hearing for non-compliance with the support order of November 4, 1964, after which a warrant was issued for his arrest for contempt of said order (also referred to in the Third Cause of Action, infra). (3) Third Cause of Action ($1,000,000 Damages Demanded) That on December 30, 1964, defendants Benenati and Peterson conspired to deprive plaintiff of equal protection of the laws by having him arrested pursuant to an arrest warrant issued by Judge Peterson (N.Y. Family Court Act § 453 (McKinney 1963)) upon the verified petition of plaintiff’s wife that plaintiff had failed to obey the Family Court order of November 4,1964 with respect to supporting his minor children and removing himself from the home— the gravamen of plaintiff’s grievance being, in addition to the technical defects regarding the order referred to in the first cause of action, supra, that plaintiff without a hearing was held in excessive bail of $2,500 to secure past and future payments of support (N.Y. Family Court Act § 153 (McKinney 1963)), although immediately upon being arrested by Sheriff Benenati, and at the telephone direction of Judge Peterson, plaintiff was released upon posting $500 cash bail for appearance in the Family Court (N.Y. Family Court Act § 155 (McKinney 1963)). (4) Fourth Cause of Action ($5,000 Damages Demanded) That during the period from 1965 to November 6, 1967, defendants Benenati, David F. Lee, Jr., and Edward J. Lee conspired to deprive plaintiff of equal protection of the laws by refusing him access to the Supreme Court Library at Norwich on the days it was closed; and, after granting him access, by refusing to permit him to take books out of the library, thus “denying the plaintiff an opportunity to a higher education.” (5) Fifth Cause of Action ($10,000 Damages Demanded) That on November 4, 1964, after conclusion of the testimony in the separation action, defendants Peterson and Schapiro conspired to have the order of the Family Court changed to require plaintiff, rather than his wife, to move out of the house; and on January 4, 1967, defendants Peterson and Schapiro conspired"
},
{
"docid": "7262691",
"title": "",
"text": "823, 828-829 (2 Cir. 1964), cert. denied, 381 U.S. 915 (1965). Nevertheless, lest it be said that the Court should assume jurisdiction to determine whether the complaint states a cause of action upon which relief can be granted, Bell v. Hood, supra, at 681-683; Pennsylvania v. Brown, 260 F.Supp. 323, 332 (E.D.Pa.1966), modified on other grounds, 373 F.2d 771 (3 Cir. 1967), the Court in the alternative holds that the instant complaint fails to state a claim upon which relief can be granted and is dismissed pursuant to Rule 12(b) (6), Fed.R.Civ.P. There are two essential elements requisite to a cause of action under the Civil Rights Act: (1) that the conduct complained of must have been done by some person acting under color of state or local law; and (2) that such conduct deprived plaintiff of rights, privileges or immunities secured to him by the Constitution and laws of the United States. Assuming that the instant complaint complies with the first essential element as to some of the named defendants, it is totally deficient as to the second. It does not allege deprivation of any federally protected right, privilege or immunity. Powell v. Workmen’s Compensation Board, supra, at 136-137; cf. Birnbaum v. Trussell, 371 F.2d 672 (2 Cir. 1966). In view of the Court’s dismissal of the action for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim upon which relief can be granted, other claims raised by defendants need not be ruled upon. Certain of these claims, however, may be noted in passing. Defendants David F. Lee, Jr., and Peterson, as state judges, claim, and clearly are entitled to, judicial immunity. Common law immunity of judges from liability for damages for acts committed within their judicial jurisdiction, Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872), was not abolished by 42 U.S.C. § 1983, which makes liable “every person” who under color of law deprives another person of his civil rights. Pierson v. Ray, 386 U.S. 547, 554 (1967); Fanale v. Sheehy, 385 F.2d 866 (2 Cir. 1967). Whether such immunity would"
},
{
"docid": "7262690",
"title": "",
"text": "the New York state courts. Plaintiff’s claims utterly fail to raise any substantial federal question; they are “wholly insubstantial and frivolous.” Bell v. Hood, 327 U.S. 678, 682-683 (1946); see Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Powell v. Workmen’s Compensation Board, 327 F.2d 131, 137-138 (2 Cir. 1964); Curry v. Ragan, supra; Screven County v. Brier Creek Hunting & Fishing Club, supra. The action accordingly is dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b) (1), Fed.R.Civ.P. Failure To State Claim Upon Which Relief Can Be Granted Having thus determined the threshold jurisdictional question by holding that the Court lacks subject matter jurisdiction, it is unnecessary (and, in my view, inappropriate) to rule on the other claims raised by defendants, including their motions to dismiss for failure to state a claim upon which relief can be granted. Tkaczyk v. Gallagher, 259 F.Supp. 584, 587 (D.Conn.1966), appeal dismissed by Court of Appeals on September 19, 1966, cert. denied, 386 U.S. 1013 (1967); see T. B. Harms Company v. Eliscu, 339 F.2d 823, 828-829 (2 Cir. 1964), cert. denied, 381 U.S. 915 (1965). Nevertheless, lest it be said that the Court should assume jurisdiction to determine whether the complaint states a cause of action upon which relief can be granted, Bell v. Hood, supra, at 681-683; Pennsylvania v. Brown, 260 F.Supp. 323, 332 (E.D.Pa.1966), modified on other grounds, 373 F.2d 771 (3 Cir. 1967), the Court in the alternative holds that the instant complaint fails to state a claim upon which relief can be granted and is dismissed pursuant to Rule 12(b) (6), Fed.R.Civ.P. There are two essential elements requisite to a cause of action under the Civil Rights Act: (1) that the conduct complained of must have been done by some person acting under color of state or local law; and (2) that such conduct deprived plaintiff of rights, privileges or immunities secured to him by the Constitution and laws of the United States. Assuming that the instant complaint complies with the first essential element as to some of the named defendants, it is totally deficient"
},
{
"docid": "7262692",
"title": "",
"text": "as to the second. It does not allege deprivation of any federally protected right, privilege or immunity. Powell v. Workmen’s Compensation Board, supra, at 136-137; cf. Birnbaum v. Trussell, 371 F.2d 672 (2 Cir. 1966). In view of the Court’s dismissal of the action for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim upon which relief can be granted, other claims raised by defendants need not be ruled upon. Certain of these claims, however, may be noted in passing. Defendants David F. Lee, Jr., and Peterson, as state judges, claim, and clearly are entitled to, judicial immunity. Common law immunity of judges from liability for damages for acts committed within their judicial jurisdiction, Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872), was not abolished by 42 U.S.C. § 1983, which makes liable “every person” who under color of law deprives another person of his civil rights. Pierson v. Ray, 386 U.S. 547, 554 (1967); Fanale v. Sheehy, 385 F.2d 866 (2 Cir. 1967). Whether such immunity would extend to defendants Belden and Benenati with respect to their acts as officers of the state courts and under judicial direction, presents a closer question. Compare Birnbaum v. Trussell, 347 F.2d 86, 88-89 (2 Cir. 1965), with Fanale v. Sheehy, supra, at 868-869, Haldane v. Chagnon, 345 F.2d 601, 604 (9 Cir. 1965), and Curry v. Ragan, supra, at 450; see Pierson v. Ray, supra, at 555-558. Defendant Schapiro, whose acts were those of an attorney performed in his professional capacity, did not act as a state official and therefore his conduct complained of was not action taken under color of state law within the meaning of the Civil Rights Act. Christman v. Pennsylvania, 275 F.Supp. 434, 435 (W.D.Pa.1967). He could not conspire with Judge Peterson who is immune under the Civil Rights Act. Haldane v. Chagnon, supra, at 604-605; Bottone v. Lindsley, 170 F.2d 705 (10 Cir. 1948). And it is not alleged that he conspired with anyone else. Plaintiff’s claim that defendants Benenati, David F. Lee, Jr., and Edward J. Lee, in refusing"
},
{
"docid": "18367875",
"title": "",
"text": "1598. See Hoffman v. Halden, 268 F.2d at 294. Where the plaintiff fails to make this critical allegation a court must dismiss his complaint for failure to state a claim upon which relief can be granted. See, e. g., Harris v. Ward, 418 F.Supp. 660 (S.D.N.Y.1976); Meyer v. Curran, 397 F.Supp. 512 (E.D.Pa.1975). There is no allegation in the complaint that the Sausalito police were a part of a conspiracy between Lawrence Baer’s parents and the Foundation to deprive him of his constitutional rights. Neither is there any allegation that the police shared this goal. The facts pleaded show only that the police assisted in the effectuation of a court order, which is insufficient to establish that defendants and the police came to a “meeting of the minds.” The same is true with respect to the superior court judge. There is no allegation in the complaint that the judge was conspiring with the defendants, or, short of conspiring with them, shared their intention to deprive Lawrence Baer of his constitutional rights. The complaint, therefore, fails to state a § 1983 claim upon which relief can be granted under the second method as well as the first. Assuming for the moment plaintiff could amend his complaint to allege a conspiracy between the public officials and the defendants he would still have to allege sufficient facts to overcome the immunity from liability courts have granted public officials in § 1983 suits. “Private persons cannot be' held liable for conspiracy under the Civil Rights Statutes if the other conspirators are state officials who are themselves immune to liability under the facts alleged.” Sykes v. California (Department of Motor Vehicles), 497 F.2d 197, 202 (9th Cir. 1974). See Haldane v. Chagnon, 345 F.2d 601, 604-605 (9th Cir. 1965). It is well established that judges are absolutely immune from liability for acts done in the performance of their judicial functions. Pierson v. Ray, 386 U.S. 547, 553-55, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Robinson v. McCorkle, 462 F.2d 111 (3rd Cir. 1972); Haldane v. Chagnon, 345 F.2d at 604. “The only exception to this"
},
{
"docid": "23045825",
"title": "",
"text": "or concealment is alleged. See Kaiser v. Cahn, 510 F.2d 282, 287 (2d Cir. 1974); Moviecolor Ltd. v. Eastman Kodak Co., 288 F.2d 80, 84-86 (2d Cir. 1961). See also Cox, supra, 529 F.2d at 50. . We assume that the immunity of the district attorneys would extend to the medical examiner if he acted pursuant to their direction. Cf. Gregory v. Thompson, 500 F.2d 59, 65 n. 6 (9th Cir. 1974); Gillibeau v. City of Richmond, 417 F.2d 426, 429 (9th Cir. 1969); Haldane v. Chagnon, 345 F.2d 601, 603 (9th Cir. 1965) (all dealing with immunity for those acting at direction of judge). His liability as an independent actor is discussed in note 10 infra. . It should be noted that the question of whether immunity attaches will, of course, overlap with the question of whether the district attorneys’ representations concerning their authority to include castration in the “plea bargain” were fraudulent. If immunity attaches, it must be found that the district attorneys arguably had the authority to include castration in the “plea bargain,” thereby disproving the charge of fraud as to those representations. The alleged fraud as to the side effects of the castration, however, would still be at issue as a factual matter, but the district attorneys would be immune. . It is unclear whether a private party who conspires with a state official who is clothed with immunity is liable under § 1983. Dictum in this circuit implies that no liability attaches. See Haldane v. Chagnon, 345 F.2d 601, 604 (9th Cir. 1965). The result is based on the theory that, because no valid claim could be stated against the immune state official, the “color of state law” basis upon which a § 1983 action would lie is eliminated. It is interesting to note that an immune official conspiring with a non-immune official always retains his immunity for acts committed in the conspiracy. See Hoffman v. Halden, 268 F.2d 280, 301 (9th Cir. 1959). Although the non-immune official in this situation would still be individually liable under § 1983, whether he is liable for the"
},
{
"docid": "10761153",
"title": "",
"text": "not be a state officer to be held to have acted under color of state law. “It is enough that he is a wilful participant in joint activity with the State or its agents.” United States v. Price, 383 U.S. 787, 794, n. 7, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966). In his complaint, Meyer alleged that Wisconsin Surety and Hulse were “knowingly accepting the fraudulent benefits of Judge Lavelle’s reprehensible conduct.” Assuming that, with the liberal interpretation required to be given to pro se complaints (Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)), this charges wilful participation by these defendants in joint activity with a state officer depriving Meyer of his civil rights, the § 1983 claim must still fall. Defendant Lavelle was' earlier dismissed from C.A. 74-1442 on grounds of judicial immunity. 64 F. R.D. at 535-536 (E.D.Pa.1974), citing Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Schmidt v. Degen, 376 F.Supp. 664 (E.D.Pa. 1974). “A private person cannot be held liable under Title 42 U.S.C. § 1983 unless his wrongful action was done under color of state law or state authority. Further, a private person alleged to have conspired with a state judge and prosecuting attorney who are entitled to immunity, cannot be held liable, since he is not conspiring with persons acting under color of law ‘against whom [plaintiff] could state a valid claim’ under 42 U.S.C. § 1983. Haldane v. Chagnon, 345 F.2d 601, 604 (9th CCA 1965).” Guedry v. Ford, 431 F.2d 660, 664 (5th Cir. 1970), reh. denied October 5, 1970. Under this rule neither Wisconsin Surety nor Hulse may be held liable for conspiring with the state judge who is immune from suit. Meyer has therefore failed to state a claim under § 1983 for which relief can be granted. See also Sykes v. State of Calif. (Dept. of Motor Vehicles), 497 F.2d 197, 200 n. 2 (9th Cir. 1974); Hill v. McClellan, 490 F.2d 859, 860 (5th Cir. 1974). The motion of defendants, Wisconsin Surety and Hulse, to dismiss C.A."
},
{
"docid": "23045818",
"title": "",
"text": "are not prima facie liable under § 1983. Yet, Briley avers that his counsel acted in concert with the judge, district attorneys, and medical examiner as part of a conspiracy to deprive him of his civil rights and to inflict cruel and unusual punishment on him. It is clear that defendants who were engaged in purely private conduct may be found liable under § 1983 if it is established that they have acted in concert with another party against whom a valid claim can be stated. See Gillibeau v. City of Richmond, 417 F.2d 426, 430 (9th Cir. 1969); Haldane v. Chagnon, 345 F.2d 601, 604-05 (9th Cir. 1965); Kletschka v. Driver, 411 F.2d 436, 449 (2d Cir. 1969). Hence, if on remand the Government defendants are found to be without immunity for their participation in the “plea bargain,” Briley’s private counsel may still be vulnerable to § 1983 liability for conspiracy with another party validly subject to a § 1983 claim. B. Section 1985(3) To state a cause of action under § 1985(3), it must be asserted that the defendants conspired to deprive a plaintiff (or a class of persons of which the plaintiff is a member) of equal protection of the laws, thereby causing injury to him or his property. Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Lopez v. Arrowhead Ranches, 523 F.2d 924, 926-28 (9th Cir. 1975); Arnold v. Tiffany, 487 F.2d 216, 217-19 (9th Cir. 1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1578, 39 L.Ed.2d 881 (1974). The Supreme Court made it clear in Griffin that § 1985 was not “intended to apply to all tortious, conspiratorial interferences with the rights of others,” but only to those which were founded upon “some racial, or perhaps otherwise class-based, invidiously discriminatory animus.” 403 U.S. at 101-02, 91 S.Ct. at 1798. In the instant action, Briley fails to allege that the “plea bargaining” arrangement or the castration was motivated by racial or any other invidiously discriminatory animus. Thus, his complaint fails to state a claim under § 1985(3) and was, therefore,"
},
{
"docid": "15756447",
"title": "",
"text": "duties, as he has done in connection with the state court proceedings with which the instant action is concerned. Plaintiffs have thus failed to state a claim for relief against defendant Justice Dillon, and his motion to dismiss the amended complaint is hereby granted. The other defendants, who are private persons, cannot therefore be held liable under § 1983 because they did not act in conspiracy with a state official against whom a valid claim could be stated. Consequently, their allegedly wrongful actions were not done under color of state law or state authority. See, e. g., Haldane v. Chagnon, 345 F.2d 601, 604-605 (9th Cir. 1965); Jemzura v. Belden, supra, 281 F.Supp. at 206; Shakespeare v. Wilson, 40 F.R.D. 500, 504-505 (S.D.Cal.1966). Plaintiffs apparently allege that the defendant attorneys, as officers of the court, supply the requisite connection to state action under § 1983. It is well established that attorneys are not state officers, but private persons, for the purposes of the Civil Rights Act. See, e. g., Haldane v. Chagnon, supra, 345 F.2d at 604; Meier v. State Farm Mutual Auto. Ins. Co., 356 F.2d 504 (7th Cir. 1966); Rhodes v. Meyer, supra; Jemzura v. Belden, supra; Pritt v. Johnson, supra. Nor is a witness at a trial acting under color of state law. See, e. g., Pritt v. Johnson, supra. The Court concludes that the amended complaint fails to state a claim for relief under § 1983 against any of the defendants because Justice Dillon is immune, and the other defendants in no way acted under color of state law. Because it appears beyond doubt that plaintiffs can prove no set of facts to support their allegations of state action, the amended complaint is hereby dismissed for failure to state a claim. See, e. g., Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Moreover, even assuming arguendo, that the mere use of the courts by litigants and their counsel were held to satisfy the requisite state action, this circuit has held that 28 U.S.C. § 1983 cannot be used to redress"
},
{
"docid": "7262683",
"title": "",
"text": "arrested by Sheriff Benenati, and at the telephone direction of Judge Peterson, plaintiff was released upon posting $500 cash bail for appearance in the Family Court (N.Y. Family Court Act § 155 (McKinney 1963)). (4) Fourth Cause of Action ($5,000 Damages Demanded) That during the period from 1965 to November 6, 1967, defendants Benenati, David F. Lee, Jr., and Edward J. Lee conspired to deprive plaintiff of equal protection of the laws by refusing him access to the Supreme Court Library at Norwich on the days it was closed; and, after granting him access, by refusing to permit him to take books out of the library, thus “denying the plaintiff an opportunity to a higher education.” (5) Fifth Cause of Action ($10,000 Damages Demanded) That on November 4, 1964, after conclusion of the testimony in the separation action, defendants Peterson and Schapiro conspired to have the order of the Family Court changed to require plaintiff, rather than his wife, to move out of the house; and on January 4, 1967, defendants Peterson and Schapiro conspired to have the support order of the Family Court amended by requiring plaintiff to pay $75 per week for the support of his minor children, plaintiff claiming this to be unjust in view of his “$1800 business loss” during 1966. In addition to the foregoing, plaintiff has asserted other miscellaneous claims. His allegations also overlap from one cause of action to another. The Court has considered all of plaintiff’s claims, wherever asserted and in whatever form. The summary set forth above is believed to be a fair statement of his essential claims, expressed in the light most favorable to plaintiff. DEFENDANTS’ CLAIMS Each of the defendants has moved, pursuant to Rule 12(b) (1) and (6), Fed.R.Civ.P., to dismiss for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted. Defendants David F. Lee, Jr., and Peterson, having acted in their capacities as state judges, claim judicial immunity; and defendants Belden and Benenati, having acted in their capacities as officers of the state courts and under"
},
{
"docid": "15756446",
"title": "",
"text": "S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966). Plaintiffs herein, seek to cloak the defendants with the authority of state law by alleging a conspiracy between them and Justice Dillon. There is no doubt that Justice Dillon is immune from any liability under the Civil Rights Act, see, e. g., Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Bradford Audio Corp. v. Pious, 392 F.2d 67 (2d Cir. 1968); Fanale v. Sheehy, 385 F.2d 866 (2d Cir. 1967); Beard v. Stephens, 372 F.2d 685 (5 Cir. 1967); Henig v. Odorioso, 385 F.2d 491 (3d Cir. 1967), cert. denied, 390 U.S. 1016, 88 S.Ct. 1269, 20 L.Ed.2d 166 (1967); Rhodes v. Meyer, 334 F.2d 709 (8th Cir. 1964), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964); Morgan v. Sylvester, 220 F.2d 758 (2d Cir. 1955), aff’g, 125 F.Supp. 380 (S.D.N.Y.1954); Jemzura v. Belden, 281 F.Supp. 200 (N.D.N.Y.1968). But see, United States v. Clark, 249 F.Supp. 720 (S.D.Ala.1965), where he acts within the course and scope of his judicial duties, as he has done in connection with the state court proceedings with which the instant action is concerned. Plaintiffs have thus failed to state a claim for relief against defendant Justice Dillon, and his motion to dismiss the amended complaint is hereby granted. The other defendants, who are private persons, cannot therefore be held liable under § 1983 because they did not act in conspiracy with a state official against whom a valid claim could be stated. Consequently, their allegedly wrongful actions were not done under color of state law or state authority. See, e. g., Haldane v. Chagnon, 345 F.2d 601, 604-605 (9th Cir. 1965); Jemzura v. Belden, supra, 281 F.Supp. at 206; Shakespeare v. Wilson, 40 F.R.D. 500, 504-505 (S.D.Cal.1966). Plaintiffs apparently allege that the defendant attorneys, as officers of the court, supply the requisite connection to state action under § 1983. It is well established that attorneys are not state officers, but private persons, for the purposes of the Civil Rights Act. See, e. g., Haldane v. Chagnon, supra, 345 F.2d"
},
{
"docid": "7262693",
"title": "",
"text": "extend to defendants Belden and Benenati with respect to their acts as officers of the state courts and under judicial direction, presents a closer question. Compare Birnbaum v. Trussell, 347 F.2d 86, 88-89 (2 Cir. 1965), with Fanale v. Sheehy, supra, at 868-869, Haldane v. Chagnon, 345 F.2d 601, 604 (9 Cir. 1965), and Curry v. Ragan, supra, at 450; see Pierson v. Ray, supra, at 555-558. Defendant Schapiro, whose acts were those of an attorney performed in his professional capacity, did not act as a state official and therefore his conduct complained of was not action taken under color of state law within the meaning of the Civil Rights Act. Christman v. Pennsylvania, 275 F.Supp. 434, 435 (W.D.Pa.1967). He could not conspire with Judge Peterson who is immune under the Civil Rights Act. Haldane v. Chagnon, supra, at 604-605; Bottone v. Lindsley, 170 F.2d 705 (10 Cir. 1948). And it is not alleged that he conspired with anyone else. Plaintiff’s claim that defendants Benenati, David F. Lee, Jr., and Edward J. Lee, in refusing him access to the Supreme Court Library at Norwich on the days it was closed, deprived him of equal protection of the laws by denying him “an opportunity to a higher education”, is utterly frivolous; certainly it presents no substantial federal question. Flemming v. Adams, 377 F.2d 975, 977-978 (10 Cir. 1967), cert. denied, 389 U.S. 898 (1967). Finally, this Court wishes to make it crystal clear that its decision dismissing the instant action for lack of subject matter jurisdiction or, in the alternative, for failure of the complaint to state a claim upon which relief can be granted, is not based upon plaintiff’s failure to exhaust state remedies — a claim raised by each of the defendants. See McNeese v. Board of Education, 373 U.S. 668 (1963); Monroe v. Pape, 365 U.S. 167, 183 (1961); Wright v. McMann, 387 F.2d 519 (2 Cir. 1967); Birnbaum v. Trussell, 371 F.2d 672, 680 (2 Cir. 1966) (concurring opinion); Powell v. Workmen’s Compensation Board, supra, at 135-136. Conclusion There is abroad in the land a notion that"
},
{
"docid": "14647985",
"title": "",
"text": "protected from civil liability for judicial actions done under color of office if they have jurisdiction, even if the acts are done under authority of unconstitutional statutes. This immunity applies in actions for damages brought under Title 42 U.S.C. § 1983, as in this case. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) Beard v. Stephens, 372 F.2d 685 (5th CCA 1967) Franklin v. Meredith, 386 F.2d 958 (10th CCA 1967) Carmack v. Gibson, 363 F.2d 862 (5th CCA 1966) 5. A prosecuting attorney when acting in his official capacity is protected by the same immunity in civil cases that is applicable to judges, provided that his acts are within the scope of his jurisdiction and by authorization of law. Madison v. Purdy, 410 F.2d 99 (5th CCA 1969) Carmack v. Gibson, supra Lewis v. Brautigam, 227 F.2d 124 (5th CCA 1955) Peek v. Mitchell, 419 F.2d 575 (6th CCA 1970) Bauers v. Heisel, 361 F.2d 581 (3rd CCA 1966), Cert. den. 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967) Friedman v. Younger, 282 F.Supp. 710 (C.D.Calif.1968) Cf. Peterson v. Stanczak, 48 F.R.D. 426 (N.D.Ill.1969). 6. At no time did the defendants Ford and Dufreche act other than in their capacity as City Judge and Assistant District Attorney, respectively. Accordingly, both are entitled to the protection of judicial immunity that is afforded judicial officers acting in the scope of their jurisdiction. 7. A private person cannot be held liable under Title 42 U.S.C. § 1983 unless his wrongful action was done under color of state law or state authority. Further, a private person alleged to have conspired with a state judge and prosecuting attorney who are entitled to immunity, cannot be held liable, since he is not conspiring with persons acting under color of law “against whom [plaintiff] could state a valid claim” under 42 U.S.C. § 1983. Haldane v. Chagnon, 345 F.2d 601, 604 (9th CCA 1965) Shakespeare v. Wilson, 40 F.R.D. 500, 505 (S.D.Calif.1966) Stambler v. Dillon, 302 F.Supp. 1250 (S.D.N.Y.1969) Jemzura v. Belden, 281 F.Supp. 200, 206 (N.D.N.Y.1968) Cf. Hall"
},
{
"docid": "13108318",
"title": "",
"text": "42 U.S.C., Section 1983, it should be noted that the Civil Rights Act creates no exception to judicial immunity. Pierson v. Ray, supra. There is nothing in the legislative history of the Civil Rights Act which abrogates or in any way impairs the doctrine of judicial immunity. Byrne v. Kysar, 347 F.2d 734 (7th Cir. 1965), cert. denied, 383 U.S. 913, 86 S.Ct. 902, 15 L.Ed.2d 668 (1966), rehearing denied, 384 U.S. 914, 994, 86 S.Ct. 1891, 16 L.Ed.2d 1011 (1966). Judges and Justices acting in their judicial capacities consistently have been held to be immune from suit under the Civil Rights Act. Haldane v. Chagnon, 345 F.2d 601 (9th Cir. 1965); Agnew v. Moody, 330 F.2d 868 (9th Cir. 1964); Hurlburt v. Graham, 323 F.2d 723 (6th Cir. 1963); Jennings v. Nester, 217 F.2d 153 (7th Cir. 1954); Drusky v. Judges of the Supreme Court, 324 F.Supp. 332 (W.D.Pa.1971); Carpenter v. Oldham, 314 F.Supp. 1350 (W.D.Mo.1970); Hagan v. State of California, 265 F.Supp. 174 (C.D.Cal.1967). Inasmuch as the affidavits of Senior Judge Roy W. Harper, Chief Judge James H. Meredith and Judge John K. Regan demonstrate that they have had no contact with plaintiff in any manner other than in their official capacity as United States District Judge, the Court holds that these defendants are immune from suit. Officials of the judiciary are also entitled to the same immunity as judges. In particular, the clerks of courts have been held not subject to civil damage suits by' reason of the doctrine of judicial immunity. Davis v. McAteer, 431 F.2d 81 (8th Cir. 1970); Rhodes v. Meyer, 334 F.2d 709 (8th Cir. 1964), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964). Accordingly, referees in bankruptcy and trustees in bankruptcy should not be subject to civil damage suits under the doctrine of judicial immunity, for they are officers of the bankruptcy court. 11 U.S.C., Secs. 61, 62; In re Swartz, 130 F.2d 229 (7th Cir. 1942); Fish v. East, 114 F.2d 177 (10th Cir. 1940). Since defendant Robert E. Brauer, Referee in Bankruptcy for the United States"
}
] |
81250 | the claims disclosed therein. 2. Patents and their individual claims are entitled to a presumption of validity. 35 U.S.C. § 282 (1988); see Custom Accessories, Inc. v. Jeffrey-Allan Indus., 807 F.2d 955, 961 (Fed.Cir.1986). The party challenging the patent’s validity bears the burden of establishing by clear and convincing evidence that the patent is invalid, Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1573-74 (Fed.Cir.1985), and this burden is particularly heavy when the claim is based on double patenting. Carman Indus. v. Wahl, 724 F.2d 932, 940 (Fed.Cir.1983). The burden of going forward, however, shifts to the patent holder to adduce evidence of nonobviousness once the challenger establishes a pri-ma facie case of invalidity. REDACTED cert. denied, 475 U.S. 1017, 106 S.Ct. 1201, 89 L.Ed.2d 315 (1986). 3. Double patenting bars, of which there are two types, attempt to prevent patent holders from extending the term of their patents for more than the statutorily permissible seventeen years. 4. The first such bar, known as “same invention” double patenting, prevents an applicant from receiving a patent on the same subject matter as a previously issued patent. In re Longi, 759 F.2d 887, 892 (Fed.Cir.1985). This doctrine directly stems from statutory language permitting issuance of patents only for “new and useful” inventions. 35 U.S.C. § 101 (1988). The parties agree, however, that this doctrine is inapplicable in the case at bar. 5. The second bar, which is the | [
{
"docid": "18744227",
"title": "",
"text": "(2) the level of ordinary skill in the art; (3) the differences between the claimed subject matter and the prior art; and (4) where relevant, objective evidence of nonobviousness, e.g., long-felt need, commercial success, failure of others, copying, unexpected results, i.e., the secondary considerations. Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 894, 221 USPQ 669, 674 (Fed.Cir.1984); Jones v. Hardy, 727 F.2d 1524, 1527, 220 USPQ 1021, 1023 (Fed. Cir.1984); W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1550, 220 USPQ 303, 311 (Fed.Cir.1983), cert. denied, - U.S. -, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984). These factual findings serve as the foundation upon which the court bases its ultimate conclusion regarding the obviousness of the claimed subject matter as a whole. Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 890, 221 USPQ 1025, 1033 (Fed.Cir.1984). This court reviews the ultimate conclusion of obviousness as one of law on which it must exercise independent judgment. Union Carbide Corp. v. American Can Co., 724 F.2d 1567, 1573, 220 USPQ 584, 589 (Fed.Cir.1984). A patent is presumed valid, and the burden of establishing invalidity as to any claim of a patent rests upon the party asserting such invalidity. 35 U.S.C. § 282 (1982). The presumption of validity is a procedural device that mandates that the party asserting invalidity bears the initial burden of establishing a prima facie case of obviousness under 35 U.S.C. § 103. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1534, 218 USPQ 871, 875 (Fed. Cir.1983). Once a prima facie case has been established, the burden shifts to the patentee to go forward with rebuttal evidence showing facts supporting nonobviousness. Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1573 (Fed.Cir.1985); accord, In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed.Cir.1984). The party asserting invalidity, however, always retains the burden of persuasion on the issue of obviousness until a final judgment is rendered. Hughes Aircraft Co. v. United States, 717 F.2d 1351, 1359, 219 USPQ 473, 478 (Fed.Cir.1983); Stratoflex, 713 F.2d at 1534, 218 USPQ at 875. Each fact forming"
}
] | [
{
"docid": "10903888",
"title": "",
"text": "some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal citation omitted). The non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(c). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Inds. Co., Ltd., 475 U.S. at 587, 106 S.Ct. 1348 (internal citation omitted). Accordingly, a mere scintilla of evidence in support of the non-moving party is insufficient for a court to deny summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A. Patent Validity When a party challenges a patent’s validity, the starting point for analyzing that challenge is the statutory presumption of validity. See 35 U.S.C. § 282 (“A patent shall be presumed valid.”). Accordingly, “[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.” Id. Invalidity must be shown by clear and convincing evidence. Robotic Vision Sys. v. View Eng’g, Inc., 189 F.3d 1370, 1377 (Fed.Cir.1999). This presumption of validity is never weakened, and the burden of proving invalidity does not shift from the party asserting invalidity. Imperial Chem. Indus., PLC v. Danbury Pharmacol, Inc., 745 F.Supp. 998, 1004 (D.Del.1990) (citing ACS Hosp. Sys., Inc. v. Montefiore Hosp., 732 F.2d 1572, 1574-75 (Fed.Cir.1984) (other citations omitted)). The burden of going forward with evidence rebutting invalidity may shift to the patentee only after the party asserting invalidity has demonstrated a legally sufficient prima facie case of invalidity. Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 291 (Fed.Cir.1985) (internal citations omitted). If the party asserting invalidity has established a legally sufficient case of invalidity, the court then examines all of the evidence of invalidity together with all of the evidence rebutting invalidity, and determines whether there is clear and convincing evidence of invalidity. Id. at 291-92. B."
},
{
"docid": "8950512",
"title": "",
"text": "short-hand description of the invented system. For support, Berger stated that the examiner collectively characterized the method and apparatus claims of another non-elected group, Group IV, as a “method.” Finally, Berger noted that the examiner’s statement that “the Group I invention does not require the particular apparatus of Group ... VI,” (emphasis added) cannot be reconciled with Opticon’s argument that the invention of Group VI could only be expressed as a method. In light of this testimony, we cannot agree that a breach of the restriction requirement occurred. The safeguard of § 121 therefore applies in this case, and the ’297 patent is not available as a reference against the ’186 patent. Furthermore, even if there had been a breach of the restriction requirement, we would reject Opticon’s argument on the ultimate obviousness-type double patenting inquiry: whether the claims of the ’186 patent are patentably distinct from the claims of the ’297 patent. See In re Borah, 354 F.2d 1009, 1017, 148 USPQ 213, 220 (CCPA 1966) (crux of obviousness-type double patenting inquiry lies in comparison of claims); see also Gerber Garment, 916 F.2d at 686, 16 USPQ2d at 1438 (judicially created doctrine of obviousness-type double patenting applies when two applications or patents, not drawn to precisely the same invention, are “drawn to inventions so very much alike as to render one obvious in view of the other and to effectively extend the life of the patent that would have the earlier of the two issue dates”). Double patenting is an affirmative defense. Studiengesellschaft Kohle v. Northern Petrochemical Co., 784 F.2d at 352, 228 USPQ at 838. Opticon was therefore required to prove double patenting by clear and convincing evidence, a heavy and unshifting burden. RCA Corp. v. Applied Digital Data Sys., Inc., 730 F.2d 1440, 1444, 221 USPQ 385, 387 (Fed.Cir.1984) (invalidity requires clear and convincing proof, and burden remains at all times with patent challenger); Carman Indus., Inc. v. Wahl, 724 F.2d 932, 940, 220 USPQ 481, 487 (Fed.Cir.1983) (“[tjhere is a heavy burden of proof on one seeking to show double patenting”). Opticon’s conclusory allegation that the"
},
{
"docid": "19667021",
"title": "",
"text": "for guilt); by a preponderance of the evidence (the usual civil law standard for proof of a fact); or, perhaps, something in between, such as “clear and convincing,” the patent law evidentiary standard for establishing that a patent, otherwise presumed valid, is invalid, see 35 U.S.C. § 282; Am. Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1360 (Fed.Cir. 1984). Failure to prove the matter as required by the applicable standard means that the party with the burden of persuasion loses on that point — thus, if the fact trier of the issue is left uncertain, the party with the burden loses. See generally Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 3.1 (1995); 21B Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5122 (2d ed.2005). In the case before us, plaintiff/patentee TLC, alleging infringement by Gennum, has the burden of persuasion that Gennum infringes, under the usual civil law standard of preponderance of the evidence. In response to the argument by TLC that Gennum infringes claim 33 of the '250 patent, Gennum raises the affirmative defense that claim 33 is invalid because it is anticipated by the prior art. When an alleged infringer attacks the validity of an issued patent, our well-established law places the burden of persuasion on the attacker to prove invalidity by clear and convincing evidence. See Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1375 (Fed.Cir.1986); Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1573 (Fed.Cir.1985); Am. Hoist, 725 F.2d at 1360. Neither TLC’s burden to prove infringement nor Gennum’s burden to prove invalidity, both ultimate burdens of persuasion, ever shifts to the other party — the risk of decisional uncertainty stays on the proponent of the proposition. See Hybritech, 802 F.2d at 1375; Ralston, 772 F.2d at 1574; Am. Hoist, 725 F.2d at 1360. A quite different burden is that of going forward with evidence — sometimes referred to as the burden of production — a shifting burden the allocation of which depends on where in the process of trial the issue"
},
{
"docid": "18911518",
"title": "",
"text": "claim 16 of the ’721 patent and the product described in the single claim of the ’851 patent are the same, as evidenced by their common origin in the 1953 patent application. As a result, they argue that the extension of monopoly afforded by the issuance of the ’851 patent should be overturned. The Law of Double Patenting Stripped of all its verbiage, movants urge the Court to invalidate the ’851 product patent because it represents either the same invention or an obvious variation of claim 16 of the ’721 patent. The Court’s inquiry must begin with the presumption, set forth in 35 U.S.C. § 282 (1984), that the product patent is valid. In light of that presumption, the burden falls on the challenger to prove the patent’s invalidity. See, e.g., American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1358 (Fed.Cir.1984); Astra-Sjuco, A.B. v. United States International Trade Commission, 629 F.2d 682, 688 (C.C.P.A.1980); Aluminum Co. of America v. Amerola Products Corp., 552 F.2d 1020, 1024 (3d Cir.1977); Chicago Rawhide Manufacturing Co. v. Crane Packing Co., 523 F.2d 452, 458 (7th Cir.1975), cert. denied, 423 U.S. 1091, 96 S.Ct. 887, 47 L.Ed.2d 103 (1976); Griswold v. Oil Capital Valve Co., 375 F.2d 532, 537 (10th Cir.1966). In double patenting cases, that burden is a heavy one. See Carman Industries, Inc. v. Wahl, 724 F.2d 932, 940 (Fed.Cir.1983); Transmatic, Inc. v. Gulton Industries, 601 F.2d 904, 913 (6th Cir.1979); Reynolds Metals Co. v. Continental Group, Inc., 525 F.Supp. 950, 972 (N.D.Ill.1981). In this action, movants’ double patenting challenge involves a comparison of the claim of Phillips’ ‘851 product patent with claim 16 of the expired ‘721 patent. Both patents have as their genealogical parent the 1953 application. The parties agree that the parent application and the two patents each disclose the invention of normally solid crystalline polypropylene and teach the preparation of that product through use of Phillips’ chromium oxide catalyst. Patents which issue from co-pending applications may, however, overlap with respect to the information they disclose without necessarily resulting in double patenting. See In re"
},
{
"docid": "8950513",
"title": "",
"text": "comparison of claims); see also Gerber Garment, 916 F.2d at 686, 16 USPQ2d at 1438 (judicially created doctrine of obviousness-type double patenting applies when two applications or patents, not drawn to precisely the same invention, are “drawn to inventions so very much alike as to render one obvious in view of the other and to effectively extend the life of the patent that would have the earlier of the two issue dates”). Double patenting is an affirmative defense. Studiengesellschaft Kohle v. Northern Petrochemical Co., 784 F.2d at 352, 228 USPQ at 838. Opticon was therefore required to prove double patenting by clear and convincing evidence, a heavy and unshifting burden. RCA Corp. v. Applied Digital Data Sys., Inc., 730 F.2d 1440, 1444, 221 USPQ 385, 387 (Fed.Cir.1984) (invalidity requires clear and convincing proof, and burden remains at all times with patent challenger); Carman Indus., Inc. v. Wahl, 724 F.2d 932, 940, 220 USPQ 481, 487 (Fed.Cir.1983) (“[tjhere is a heavy burden of proof on one seeking to show double patenting”). Opticon’s conclusory allegation that the District Court’s decision on double patenting was in error, without citation to the record, the patents or the testimony of the witnesses, does not support reversal. See In re Mulder, 716 F.2d 1542, 1550, 219 USPQ 189, 197 (Fed.Cir.1983) (to obtain reversal, appellant must clearly explain why decision below is wrong). As a court of review, it is not our function to search the voluminous trial record, prosecution histories, and patents to fashion a substan tive basis for Opticon’s argument. See Preemption Devices, Inc. v. Minnesota Mining & Mfg. Co., 732 F.2d 903, 905, 221 USPQ 841, 842 (Fed.Cir.1984) (as appellate court, it is not our function to search the record in order to reach a conclusion favoring appellant). Nevertheless, even a brief review of the ’297 patent reveals that all of the asserted claims are directed to a laser self-scanning head with a “trigger,” a “handle,” and means for “sighting the symbol along a direct line of sight.” In contrast, the asserted claims of the ’186 patent recite additional features. Although the claims of"
},
{
"docid": "3616424",
"title": "",
"text": "supplied and this would involve “an undue amount of experimentation.” Id. In its cross-appeal Telectronics argues that the patent is invalid for non-enable ment regardless of how the claims are interpreted because the disclosure does not bear a reasonable relationship to the scope of the claims. Enablement is a legal determination which is reviewed as a matter of law. Raytheon Co. v. Roper Co., 724 F.2d 951, 951-60, 220 USPQ 592, 599 (Fed.Cir.1983). To be enabling under section 112, the patent must contain a description sufficient to enable one skilled in the art to make and use the claimed invention. Id. A patent may be enabling even though some experimentation is necessary; the amount of experimentation, however, must not be unduly extensive. Atlas Powder Co. v. E.I. du Pont De Nemours & Co., 750 F.2d 1569, 1576, 224 USPQ 409, 413 (Fed.Cir.1984). A patent is presumed valid, and the burden of proving invalidity, whether under section 112 or otherwise, rests with the challenger. Invalidity must be proven by facts supported by clear and convincing evidence. Ralston Purina Co. v. Far-Mar-Co., Inc., 772 F.2d 1570, 1573-74, 227 USPQ 177, 178 (Fed.Cir.1985) (“A party asserting invalidity based on 35 U.S.C. § 112 bears no less a burden ... than any other patent challenger.”) Thus, although not mentioned by the district court, it is Telectronics’ burden to show by facts supported by clear and convincing evidence that the patent was not enabling. We note first that Telectronics admits that “[t]he patent does disclose how to successfully practice the invention — if stainless steel electrodes and a current in the range of 5-20 microamperes is [sic] used.” (Emphasis in original.) Lack of enablement is asserted on the basis that “the claims are not limited to the specific metal/current combination.” The district court thought that to determine the optimal electrical current for materials other than stainless steel a dose response study would be required and that this would involve an “undue amount of experimentation.” The district court said “the patent does not tell a person reasonably skilled in the art how to make and use"
},
{
"docid": "6646984",
"title": "",
"text": "U.S. Patent and Trademark Office, 882 F.2d 1570, 1576, 11 USPQ2d 1866, 1871 (Fed.Cir.1989) and Boeing Co. v. Commissioner of Patents and Trademarks, 853 F.2d 878, 881, 7 USPQ2d 1487, 1489 (Fed.Cir.1988). 16. The Court concludes that the Ramos U.S. Patent 4,380,090 continues to be entitled to the statutory presumption of validity pursuant to 35 U.S.C. § 282, even after consideration of all the prior art and the other evidence presented by Defendant Biomet upon original PTO examination and reexamination. 17. The Ramos ’090 patent enjoys an enhanced presumption of validity in that the Patent and Trademark Office has issued its Notice of Intent to Issue Reexamination Certificate, dated April 21, 1993, wherein it confirms the validity of Claims 1-5 in light of the Request for Reexamination filed by Defendant Biomet’s counsel on behalf of a defendant in another civil action for infringement of the Ramos ’090 patent. (Plaintiffs Exhibit 100; Gibson Testimony, 4/22/93, pp. 70-71). 18. Although patent claims are presumed valid under 35 U.S.C. § 282, the presumption can be overcome by a showing of clear and convincing evidence of invalidity. Under 35 U.S.C. § 103, invalidity on the basis of obviousness can be shown where the claimed invention would have been obvious to one of ordinary skill in the art at the time the invention was made. 19. Though the ultimate question is one of law, a determination of obviousness, under Section 103 is based upon the factual considerations enumerated in Graham v. John Deere Co., 383 U.S. 1, 13, 86 S.Ct. 684, 691, 15 L.Ed.2d 545, 148 USPQ 459, 465 (1966), namely: (a) the scope and content of the prior art; (b) the differences between the prior art and the claims at issue; (c) the level of ordinary skill in the art; (d) objective evidence of non-obviousness. Custom Accessories, Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 1 USPQ2d 1196 (Fed.Cir.1986). 20. The issue of obviousness is determined by reference to the hypothetical person of ordinary skill in the art. Bausch & Lomb, Inc. v. Barnes-Hind/Hydrocurve, Inc., 796 F.2d 443, 230 USPQ 416 (Fed.Cir. 1986). 21."
},
{
"docid": "22962318",
"title": "",
"text": "the asserted claims were not entitled to the priority date of the Original Application because the written description of the Original Application did not support the later issued claims. The district court noted that, to arrive at the broad construction it accorded the “customer interface,” it relied “exclusively” on the new matter that was added to the 2000 CIP Application. PowerOasis, 2007 WL 962937, at *8. Because the district court concluded that the '658 and '400 patents are not entitled to the effective filing date of the Original Application, the district court granted the motion for summary judgment of invalidity. This appeal followed. DISCUSSION We review the grant of summary judgment de novo. Liebel-Flarsheim Co. v. Medrad, Inc., 481 F.3d 1371, 1377 (Fed.Cir.2007). Summary judgment is not appropriate 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 v. Liberty Lobby, Inc., 477 U.S. 242; 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). PowerOasis appeals two aspects of the district court’s summary judgment determination. First, PowerOasis argues that the district court erred when it placed the burden of proof on PowerOasis to show that it is entitled to the priority date of the Original Application. Second, PowerOasis argues that the district court erred in concluding that the disclosure of the Original Application does not provide a written description adequate to support the asserted claims of the '658 and '400 patents. See 35 U.S.C. § 112 ¶ 1. PowerOasis contends that, at a minimum, there is a genuine issue of material fact which prevents summary judgment of invalidity. We consider each issue in turn. I. Burden of Proof It is well established that a patent is presumed valid, and “the burden of persuasion to the contrary is and remains on the party asserting invalidity.” Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1573 (Fed.Cir.1985). The district court acknowledged a challenged patent is entitled to a presumption of validity, but questioned whether the presumption of validity extends to the question of priority."
},
{
"docid": "17802207",
"title": "",
"text": "components on one side of the charge coil. However, the electrical circuitry remained disposed about the charging coil. The Wolf patent application was filed more than two years after the first model 10885 was sold. That application did not disclose the existence of the plaintiffs model 10885. III. There are three patents at issue in this litigation; the validity of all three has been challenged. Validity encompasses three “separate tests of patentability”: novelty, utility and non-obviousness. United States v. Adams, 383 U.S. 39, 48, 86 S.Ct. 708, 712, 15 L.Ed.2d 572, 148 USPQ 479 (1966); see also Structural Rubber Products Co. v. Park Rubber Co., 749 F.2d 707, 714, 223 USPQ 1264 (Fed.Cir.1984). “The ultimate question of validity is one of law.” Graham v. John Deere, 383 U.S. 1, 17, 86 S.Ct. 684, 694, 15 L.Ed.2d 545, 148 USPQ 459 (1966); Structural Rubber, 749 F.2d at 714. “The burden of establishing the validity of a patent or any claim thereof shall rest on the party asserting such invalidity.” 35 U.S.C. § 282 (1976). That burden is permanent and does not shift. American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1358, 220 USPQ 763 (Fed.Cir.1984), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41, 224 USPQ 520 (1984); South Corporation v. United States, 690 F.2d 1368, 1369, 215 USPQ 657 (Fed.Cir.1982). The burden of establishing invalidity includes overcoming a presumption that the patent is valid. Windsurfing International, Inc. v. AMF, Inc., 782 F.2d 995, 998, 228 USPQ 562 (Fed.Cir.1986); Ralston Purina Co. v. Far-Mar-Co., Inc., 772 F.2d 1570, 1573, 227 USPQ 177 (Fed. Cir.1985); Structural Rubber, 749 F.2d at 714; Environtech Corp. v. Al George, Inc., 730 F.2d 753, 762, 221 USPQ 473 (Fed.Cir. 1984); W.L. Gore and Assoc., Inc. v. Garlock, Inc., 721 F.2d 1540, 1543, 220 USPQ 303 (Fed.Cir.1983), cert. denied, 469 U.S. 851, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984). The presumption was originally created in the courts and subsequently included in the Patent Act of 1952 in Section 282. American Hoist, 725 F.2d at 1359. The United States Court of"
},
{
"docid": "11473154",
"title": "",
"text": "the defendant cannot make sufficient showing of invalidity, the presumption of validity is sufficient to satisfy the patentee’s burden of showing of likelihood of success on the merits as to validity. PPG Indus., 75 F.3d at 1566. However, although the patentee has no burden to prove validity of its patent, when validity has been challenged, “the patentee must show that the alleged infringer’s defense lacks substantial merit.” New England Braiding Co., 970 F.2d at 883. i. The “on-sale” bar. Smithco’s first challenge to the validity of the ’214 patent is that the alleged invention described in the patent was on sale more than one year before Rogers applied for the patent. Thus, Smitheo asserts that the patent is invalid pursuant to 35 U.S.C. § 102(b): An inventor loses the right to a patent if he placed the claimed invention “in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.” 35 U.S.C. § 102(b). Whether an invention is on sale is a question of law. In re Mahurkar Double Lumen Hemodialysis Catheter Patent Litigation, 71 F.3d 1573, 1576 (Fed.Cir.1995); Ferag AG v. Quipp, Inc., 45 F.3d 1562, 1566 (Fed.Cir.) (citing the statutory bar and stating that the ultimate determination that a product was placed on sale is a question of law based on underlying facts), cert. denied, — U.S. -, 116 S.Ct. 71, 133 L.Ed.2d 31 (1995); In re Epstein, 32 F.3d 1559, 1564 (Fed.Cir.1994) (citing statutory bar and also stating determination is one of law based on underlying facts). The alleged infringer bears the burden of demonstrating that “ ‘there was a definite sale or offer to sell more than one year before the application for the subject patent, and that the subject matter of the sale or offer to sale fully anticipated the claimed invention.’ ” Id. (quoting UMC Elecs. Co. v. United States, 816 F.2d 647, 656 (Fed.Cir.1987), cert. denied, 484 U.S. 1025, 108 S.Ct. 748, 98 L.Ed.2d 761 (1988)); Ferag AG, 45 F.3d at 1566. The test is an objective one,"
},
{
"docid": "10903907",
"title": "",
"text": "184 F.3d 1339, 1355 (Fed.Cir.1999)). There still, however, must be evidence that “a skilled artisan, confronted with the same problems as the inventor and with no knowledge of the claimed invention, would select the elements from the cited prior art references for combination in the manner claimed.” Id. (quoting In re Rouffet, 149 F.3d 1350, 1357 (Fed.Cir.1998)); see also In re Werner Kotzab, 217 F.3d 1365, 1371 (Fed.Cir.2000) (“[A] rejection cannot be predicated on the mere identification ... of individual components of claimed limitations. Rather, particular findings must be made as to the reason the skilled artisan, with no knowledge of the claimed invention, would have selected these components for combination in the manner claimed.”). Here, Mergen has not presented any evidence beyond the assertion of its expert that there would have been a motivation to combine. OGT, of course, denies that one of ordinary skill in the art would have selected these components for combination in the manner claimed. (D.I. 178 at 14-15; D.I. 231 at 11-13.) Therefore, a genuine issue of material fact remains on this issue. e. Secondary Considerations Because Mergen has failed to establish a prima facie case of invalidity of the ’270 patent based on obviousness by clear and convincing evidence, and because it is not until “a prima facie case has been established, [that] the burden shifts to the pat-entee to go forward with rebuttal evidence showing facts supporting nonobviousness,” Ashland Oil, 776 F.2d at 291-92 (citing Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1573 (Fed.Cir.1985); accord, In re Piasecki, 745 F.2d 1468, 1472 (Fed.Cir.1984)) any discussion of secondary considerations at this stage would be premature. The same factual issues that require the denial of Mergen’s Motion for Invalidity also require the denial of OGT’s Motion for Validity. However, the motions practice on this point has had the effect of demonstrating that Mergen may only challenge the validity of the ’270 patent on the issue of obviousness based on the ’726 application in view of the ’373 patent. B. INFRINGEMENT 1. Direct Infringement OGT has moved for summary judgment that Mergen literally"
},
{
"docid": "20836472",
"title": "",
"text": "95 ¶ 354. As a result, the district court found that the '442 patent covered the exact same invention as the '766 patent and held that asserted claims of the '442 patent were invalid over the asserted claims of the '766 patent for obviousness-type double patenting. The district court entered a partial final judgment pursuant to Rule 54(b) in favor of AbbVie, and Kennedy appealed. Fed.R.Civ.P. 54(b). We have jurisdiction pursuant to 28 U.S.C. §§ 1292(c) and 1295(a)(1). Invalidity must be proven by clear and convincing evidence. Microsoft Corp. v. i4i Ltd. P’Ship, — U.S. -, 131 S.Ct. 2238, 2242, 180 L.Ed.2d 131 (2011); McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1349 (Fed.Cir.2001). While the ultimate conclusion that a patent is invalid under the doctrine of obviousness-type double patenting is reviewed de novo, the underlying factual determinations — including the existence of secondary factors such as unexpected results — are reviewed for clear error. Eli Lilly & Co. v. Teva Parenteral Meds., Inc., 689 F.3d 1368, 1376 (Fed.Cir.2012). Claim construction is a question of law that we review de novo. Lighting Ballast Control LLC v. Philips Elecs. N. Am. Corp., 744 F.3d 1272, 1286 (Fed.Cir.2014) (en banc); Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454-55 (Fed.Cir.1998) (en banc). Disoussion I While often described as a court-created doctrine, obviousness-type double patenting is grounded in the text of the Patent Act. See In re Longi, 759 F.2d 887, 892 (Fed.Cir.1985); see also Boehringer Ingel-heim Int’l. GmbH v. Barr Labs., Inc., 592 F.3d 1340, 1346 (Fed.Cir.2010); Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955, 967 (Fed.Cir.2001). Section 101 reads: ‘Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, ... may obtain a patent therefor.” 35 U.S.C. § 101 (emphasis added). Thus, § 101 forbids an individual from obtaining more than one patent on the same invention, i.e., double patenting. As this court has explained, “a rejection based upon double patenting of the obviousness type” is “grounded in public policy (a policy reflected in the patent statute).” Longi, 759 F.2d at 892"
},
{
"docid": "23608960",
"title": "",
"text": "claims for obviousness-type double patenting, which is a judicially-created doctrine that seeks to prevent the applicant from expanding the grant of the patent right beyond the limits prescribed in Title 35. See, e.g., In re Braat, 937 F.2d 589, 592, 19 USPQ2d 1289, 1291-92 (Fed.Cir.1991); In re Longi, 759 F.2d 887, 892, 225 USPQ 645, 648 (Fed.Cir.1985). See also 35 U.S.C. § 154(a)(2) (Supp.1998) (discussing patent term). The doctrine prohibits claims in a second patent which define “merely an obvious variation” of an invention claimed by the same inventor in an earlier patent. Braat, 937 F.2d at 592, 19 USPQ2d at 1292 (quoting In re Vogel, 57 C.C.P.A. 920, 422 F.2d 438, 441, 164 USPQ 619, 622 (CCPA 1970)). Thus, unless a claim sought in the later patent is patent-ably distinct from the claims in an earlier patent, the claim must be rejected. See In re Goodman, 11 F.3d 1046, 1052, 29 USPQ2d 2010, 2015 (Fed.Cir.1993); Vogel, 422 F.2d at 441, 164 USPQ at 622. This question is one of law, which we review de novo. See Goodman, 11 F.3d at 1052, 29 USPQ2d at 2015; Texas Instruments Inc. v. United States Int’l Trade Comm’n, 988 F.2d 1165, 1179, 26 USPQ2d 1018, 1029 (Fed.Cir.1993). A The law provides that, in some very rare cases, obvious-type double patenting may be found between design and utility patents. See Carman Indus., Inc. v. Wahl, 724 F.2d 932, 939-40, 220 USPQ 481, 487 (Fed.Cir.1983) (noting that, while theoretically possible, “[d]ouble patenting is rare in the context of utility versus design patents”); In re Thorington, 57 C.C.P.A. 759, 418 F.2d 528, 536-37, 163 USPQ 644, 650 (CCPA 1969) (Double patenting between a design and utility patent is possible “if the features producing the novel aesthetic effect of a design patent or application are the same as those recited in the claims of a utility patent or application as producing a novel structure.”); In re Phelan, 40 C.C.P.A. 1023, 205 F.2d 183, 98 USPQ 156 (CCPA 1953); In re Barber, 81 F.2d 231, 28 USPQ 187 (CCPA 1936); In re Hargraves, 53 F.2d 900, 11 USPQ"
},
{
"docid": "13630958",
"title": "",
"text": "similarity to placing the burden of proving suppression or concealment on the second-to-invent under interference law, but at the same time is appropriately limited to one of production, not persuasion, giving due regard to the presumption of validity. We therefore interpret § 102(g) as requiring that once a challenger of a patent has proven by clear and convincing evidence that “the invention was made in this country by another inventor,” 35 U.S.C. § 102(g), the burden of production shifts to the patentee to produce evidence sufficient to create a genuine issue of material fact as to whether the prior inventor has suppressed or concealed the invention. However, in accordance with the statutory presumption in 35 U.S.C. § 282, the ultimate burden of persuasion remains with the party challenging the validity of the patent. See Innovative Scuba Concepts, Inc. v. Feder Indus., Inc., 26 F.3d 1112, 1115, 31 USPQ2d 1132, 1134 (Fed.Cir.1994) (“While a patentee may have the burden of going forward with rebuttal evidence once a challenger presented a prima facie case of invalidity, the presumption of validity remains intact and the ultimate burden of proving invalidity remains with the challenger throughout the litigation.” (citing Hybritech, Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1376, 231 USPQ 81, 87 (Fed.Cir.1986))). Once the patentee has satisfied its burden of production, the party alleging invalidity under § 102(g) must rebut any alleged suppression or concealment with clear and convincing evidence to the contrary. Our case law distinguishes between two types of suppression or concealment. The first is implicated in a situation in which 'an inventor actively suppresses or conceals his invention from the public. Fujikawa v. Wattanasin, 93 F.3d 1559, 1567, 39 USPQ2d 1895, 1901 (Fed.Cir.1996) (citing Kendall v. Winsor, 62 U.S. (21 How.) 322, 328, 16 L.Ed. 165 (1858)). The second involves a legal inference of suppression or concealment based upon an unreasonable delay in filing a patent application. Peeler v. Miller, 535 F.2d 647, 655, 190 USPQ 117, 122 (1976) (holding that a four-year delay in filing a patent application after the invention was perfected was unreasonably long); Shindelar v."
},
{
"docid": "14273790",
"title": "",
"text": "the resulting complex with the main catalyst material. Accordingly, the claimed subject matter was rejected as unpatentable over the claims in the commonly-owned applications in light of the four prior art patents. II. DOUBLE PATENTING In considering the correctness of the Board's decision, we review any underlying facts found by the Board under the clearly erroneous standard. The Board’s ultimate conclusion of obviousness is a question of law determined from these facts, and will be reviewed for correctness or error as a matter of law. In re De Blauwe, 736 F.2d 699, 222 USPQ 191 (Fed. Cir.1984). Before discussing the correctness of the Board’s conclusions, a brief review of the general doctrine of double patenting is appropriate. A. Double Patenting — In General A double patenting rejection precludes one person from obtaining more than one valid patent for either (a) the “same invention,” or (b) an “obvious” modification of the same invention. A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. § 101, which states that “Whoever invents or discovers any new and useful process ... may obtain a patent therefor____” (Emphasis added.) Thus, the term “same invention,” in this context means an invention drawn to identical subject matter. In re Vogel, 422 F.2d 438, 57 C.C.P.A. 920, 164 USPQ 619 (1970). On the other hand, a rejection based upon double patenting of the obviousness type ((b), supra) is a judicially created doctrine grounded in public policy (a policy reflected in the patent statute) rather than based purely on the precise terms of the statute. The purpose of this rejection is to prevent the extension of the term of a patent, even where an express statutory basis for the rejection is missing, by prohibiting the issuance of the claims in a second patent not patentably distinct from the claims of the first patent. Carman Industries Inc. v. Wahl, 724 F.2d 932, 220 USPQ 481 (Fed.Cir.1983); and In re Thorington, 418 F.2d 528, 57 C.C.P.A. 759, 163 USPQ 644 (1969), cert. denied, 397 U.S. 1038, 90 S.Ct. 1356, 25 L.Ed.2d"
},
{
"docid": "22947933",
"title": "",
"text": "(explaining that “when [a limitation] is entirely missing, that is, when the accused device does not contain either the exact [limitation] of the claim or its equivalent, there is no infringement”). III. Validity Mas-Hamilton argues on cross-appeal that the asserted claims of the ’656 patent are invalid for a litany of reasons: (1) on-sale bar, (2) public use, (3) best mode, and (4) invention by another. Under 35 U.S.C. § 282, a patent is presumed valid and one challenging its validity bears the burden of proving invalidity by clear and convincing evidence. See Innovative Scuba Concepts, Inc. v. Feder Indus., Inc., 26 F.3d 1112, 1115, 31 USPQ2d 1132, 1134 (Fed.Cir.1994); Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1376, 231 USPQ 81, 87 (Fed.Cir.1986). While a patentee has the burden of going forward with rebuttal evidence once a challenger has presented a prima facie case of invalidity, the presumption of validity remains intact and the ultimate burden of proving invalidity remains with the challenger throughout the litigation. See id. Mas-Hamilton did not identify for the district court, nor does it here, precisely which claims it contends are invalid. It simply argues that the ’656 patent is invalid for a number of general reasons. We discuss only the one that presents the closest question: on-sale bar. The ultimate determination of whether an invention was on-sale within the meaning of 35 U.S.C. § 102(b) is a question of law which we review de novo. See Pfaff v. Wells Elec., Inc., 124 F.3d, 1429, 1432, 43 USPQ2d 1928, 1931 (Fed.Cir.1997), cert. granted, — U.S.-, 118 S.Ct. 1183, 140 L.Ed.2d 315 (1998). We review the factual findings underlying the on-sale determination, however, for clear error. See id. at 1433, 43 USPQ2d at 1931. “The relevant inquiry is whether there was a definite sale or offer for sale of the claimed invention prior to the critical date, defined as one year prior to the U.S. filing date to which the application was entitled.” Id. The application that led to the ’656 patent was filed on December 17, 1990. Hence, before the district court, Mas-Hamilton"
},
{
"docid": "23662104",
"title": "",
"text": "asserted claims of both patents. Dr. Perricone’s opening brief at 1. Nevertheless, this court need not determine the correct status of each claim. Rather, this court confines its rulings to reversal of a clearly identifiable subset of the ’693 claims and trusts the parties to resolve any uncertainty on remand. II. This court reviews a district court’s grant of summary judgment without deference and a denial of summary judgment for an abuse of discretion, Electromotive Div. of Gen. Motors Corp. v. Transp. Sys. Div. of Gen. Elec. Co., 417 F.3d 1203, 1209 (Fed.Cir.2005), drawing all reasonable inferences in favor of the nonmovant. This court gives due weight to a patent’s presumed validity under 35 U.S.C. § 282 (2000), requiring an accused infringer to prove invalidity by clear and convincing evidence. Geneva Pharm., Inc. v. Glaxosmithkline PLC, 349 F.3d 1373, 1377 (Fed.Cir.2003). This court reviews double patenting without deference. Georgia-Pacific Corp. v. U.S. Gypsum Co., 195 F.3d 1322, 1326 (Fed.Cir.1999). Double Patenting The double patenting doctrine generally prevents a patentee from receiving two patents for the same invention. Thus, this doctrine polices the proper application of the patent term for each invention. The proscription against double patenting takes two forms: statutory and non-statutory. Statutory, or “same invention,” double patenting is based on the language in § 101 of the Patent Act man dating “a patent” for any new and useful invention. 35 U.S.C. § 101 (2000); In re Goodman, 11 F.3d 1046, 1052 (Fed.Cir. 1993) (“If the claimed inventions are identical in scope, the proper rejection is under 35 U.S.C. § 101 because an inventor is entitled to a single patent for an invention”) (citations omitted). Non-statutory, or “obviousness-type,” double patenting is a judicially created doctrine adopted to prevent claims in separate applications or patents that do not recite the “same” invention, but nonetheless claim inventions so alike that granting both exclusive rights would effectively extend the life of patent protection. Gerber Garment Tech., Inc. v. Lectra Sys., Inc., 916 F.2d 683, 686 (Fed.Cir.1990) (citing In re Thorington, 57 C.C.P.A. 759, 418 F.2d 528, 534 (1969)). This case involves double patenting"
},
{
"docid": "20164738",
"title": "",
"text": "prior art was not. It is to be considered as part of all the evidence, not just when the decisionmaker remains in doubt after reviewing the art.” Id. at 1538-39; see also Ruiz v. A.B. Chance Co., 234 F.3d 654, 667 (Fed.Cir.2000). 255. “That each element in a claimed invention is old or unpatentable does not determine the nonobviousness of the claimed invention as a whole.” Custom Accessories, Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 959 (Fed.Cir.1986). “There is no basis in the law ... for treating combinations of old elements differently in determining patentability.” Id. (quoting Fromson v. Advance Offset Plate, Inc., 755 F.2d 1549, 1556 (Fed.Cir.1985)) (alteration in original). “Casting an invention as ‘a combination of old elements’ leads improperly to an analysis of the claimed invention by the parts, not by the whole.... The critical inquiry is whether ‘there is something in the prior art as a whole to suggest the desirability, and thus the obviousness, of making the combination.’ ” Custom Accessories, 807 F.2d at 959 (quoting Fromson, 755 F.2d at 1556). 1. The Defendants’ Burden of Proof 256. The defendants have the burden of proof with respect to obviousness. Once the patent challenger’s prima facie case has been established, the burden shifts to the patentee to come forward with rebuttal evidence showing facts supporting nonobviousness. See WMS Gaming Inc. v. Int’l Game Tech., 184 F.3d 1339, 1359 (Fed.Cir.1999). The party asserting invalidity, however, always retains the burden of persuasion on the issue of obviousness until a final judgment is rendered. Each fact forming the factual foundation upon which the court bases its ultimate conclusion regarding the obviousness of the claimed subject matter as a whole must be established by clear and convincing evidence. Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 291-92 (Fed.Cir.1985) (internal citations omitted); see also Hybritech, Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1380 (Fed.Cir.1986) (objective evidence must be considered before a conclusion on obviousness is reached and is not merely “icing on the cake”). 257. The weight to which the objective evidence is entitled depends"
},
{
"docid": "18911519",
"title": "",
"text": "Manufacturing Co. v. Crane Packing Co., 523 F.2d 452, 458 (7th Cir.1975), cert. denied, 423 U.S. 1091, 96 S.Ct. 887, 47 L.Ed.2d 103 (1976); Griswold v. Oil Capital Valve Co., 375 F.2d 532, 537 (10th Cir.1966). In double patenting cases, that burden is a heavy one. See Carman Industries, Inc. v. Wahl, 724 F.2d 932, 940 (Fed.Cir.1983); Transmatic, Inc. v. Gulton Industries, 601 F.2d 904, 913 (6th Cir.1979); Reynolds Metals Co. v. Continental Group, Inc., 525 F.Supp. 950, 972 (N.D.Ill.1981). In this action, movants’ double patenting challenge involves a comparison of the claim of Phillips’ ‘851 product patent with claim 16 of the expired ‘721 patent. Both patents have as their genealogical parent the 1953 application. The parties agree that the parent application and the two patents each disclose the invention of normally solid crystalline polypropylene and teach the preparation of that product through use of Phillips’ chromium oxide catalyst. Patents which issue from co-pending applications may, however, overlap with respect to the information they disclose without necessarily resulting in double patenting. See In re Swett, 451 F.2d 631, 632 (C.C.P.A.1971); In re White, 405 F.2d 904, 906 (C.C.P.A.1969), Tidewater Patent Development v. Kitchen, 371 F.2d 1004, 1009 (4th Cir.1966), cert. denied, 389 U.S. 821, 88 S.Ct. 46, 19 L.Ed.2d 74 (1967). It is the claims of the patent, rather than the information disclosed in the specification, that delineate the scope of the monopoly and are critical to the double patenting inquiry. In re Baird, 348 F.2d 974 (C.C.P.A.1965). Indeed, the doctrine of double patenting, the prime function of which is to prevent an unwarranted extension of the statutory monopoly period of a valid patent, is concerned only with “attempts to claim related subject matter twice. It does not preclude a second patent on subject matter which is disclosed but not claimed in the first patent.” 3 Chisum Patents § 9.01. Although the specification confers no monopoly, it may, in certain instances, aid in determining the meaning and scope of the claims and hence is available as a reference in establishing the extent of protection carved out by the patent."
},
{
"docid": "9571853",
"title": "",
"text": "The judicially-created doctrine of obviousness-type double patenting cements that legislative limitation by prohibiting a party from obtaining an extension of the right to exclude through claims in a later patent that are not patentably distinct from claims in a commonly owned earlier patent. In re Longi, 759 F.2d 887, 892, 225 USPQ 645, 648 (Fed.Cir.1985) (explaining that, even though no explicit statutory basis exists for obviousness-type double patenting, the doctrine is necessary to prevent a patent term extension through claims in a second patent that are not patentably distinct from those in the first patent). As one of our predecessor courts explained, “[t]he fundamental reason for the rule [of obviousness-type double patenting] is to prevent unjustified timewise extension of the right to exclude granted by a patent no matter how the extension is brought about.” In re Van Omum, 686 F.2d 937, 943^44, 214 USPQ 761, 766 (Cust & Pat.App.1982) (quoting In re Schneller, 55 C.C.P.A. 1375, 397 F.2d 350, 158 USPQ 210, 214 (Cust & Pat.App.1968)). Eli Lilly, 251 F.3d at 967-68 (footnote omitted). This summary initially requires only slight amplification, although it is well to identify some additional principles of obviousness-type double patenting. In In re Lonardo, 119 F.3d 960 (Fed.Cir.1997), cert, denied, 522 U.S. 1147, 118 S.Ct. 1164, 140 L.Ed.2d 175 (1998), the Federal Circuit Court of Appeals distinguished between “same invention” double patenting, which is not at issue here, and “obviousness-type” double patenting, which is at issue here, as follows: “Same invention” double patenting is based upon 35 U.S.C. § 101 (1994), which states that an inventor may obtain “a patent” for an invention. The statute thus permits only one patent to be obtained for a single invention, and the phrase “same invention” refers to an invention drawn to substantially identical subject matter. [In re Longi, 759 F.2d 887, 892 (Fed.Cir.1985) ]. Obviousness-type double patenting, on the other hand, is judicially created and prohibits an inventor from obtaining a second patent for claims that are not patentably distinct from the claims of the first patent. Id. In re Lonardo, 119 F.3d at 965. Perhaps more importantly"
}
] |
258652 | L.Ed.2d 407 (1973). Here the “ultimate responsibility” for making the determination whether to terminate ASP was explicitly vested by Congress in the military. Courts do not have the institutional competence to make the substantive determination that a particular medical officer is deserving of additional compensation. Cf. Garbacz v. United States, 656 F.2d 628, 636 (Ct.C1.1981) (Court of Claims had no authority to review the decision by the Administrator of NASA to give plaintiffs less than maximum salary increases since that decision was “wholly within [the] agency’s discretion”). As the record shows, many military and medical factors went into the decision to deny Voge ASP, and it would be singularly inappropriate to second-guess the judgment of the military medical officers involved. Cf. REDACTED This is like thousands of other routine personnel decisions regularly made by the services which are variously held nonjusti-ciable or beyond the competence or the jurisdiction of courts to wrestle with. See, e.g., Gilligan, 413 U.S. at 10, 93 S.Ct. at 2446 (“training, weaponry and orders” of the National Guard presents nonjusticiable issue); Orloff, 345 U.S. at 93, 73 S.Ct. at 540 (“not within the power” of the courts to review determination to assign doctor to particular duties in the medical field); Wilson v. Walker, 777 F.2d 427, 429 (8th Cir.1985) (“[traditional notions of judicial restraint and of the separation of powers” require courts to refuse to review military duty assignments); Nieszner v. Mark, 684 F.2d 562, 565 (8th Cir.1982) (challenge | [
{
"docid": "22463681",
"title": "",
"text": "of the armed forces, not of the judiciary. See Gilligan v. Morgan, 413 U.S. at 10, 93 S.Ct. at 2445; Orloff v. Willoughby, supra. That caveat is particularly strong where, as here, there has been no allegation or finding of regulatory violation or constitutional infirmity in the discharge decision which Maier voluntarily accepted. Maier having chosen not to challenge her discharge at the time it was issued, by formal hearing or otherwise, the district court could properly have held that she had waived any right, if one existed, to challenge that military determination in a judicial forum and could have properly dismissed Maier’s petition. See Stewart v. United States, 611 F.2d 1356, 1361, 222 Ct.Cl. 42 (1979); Doyle v. United States, 599 F.2d 984, 1000, 220 Ct.Cl. 285 (1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 837 (1980). CONCLUSION The district court misread the board’s decision, erred in its consideration of the evidence of record, mischaracterized the nature of the action before it, impermissibly substituted its judgment, and exceeded its authority in ordering retroactive promotions and in ordering relief beyond termination of Maier’s enlistment in November 1977. Issuance of the writ of mandamus thus constituted a clear abuse of discretion. The district court’s decision must be reversed and the case remanded with instructions to vacate the writ. REVERSED AND REMANDED. . Air Force regulations make reception of smallpox vaccination and revaccination every three years a requirement of medical qualification for service. . If Maier had checked that box, she could have challenged the PEB decision and been granted a formal hearing, identified any criticisms she might have of the medical examination, obtained a second opinion from a private specialist, or possibly have obtained a second opinion from another military medical facility. . Pursuant to the district court’s order, Maier would receive back pay for the period she has been back on active duty representing the difference between her present grade, E-4 and her grade with back promotions, possibly E-6, and would receive, in all events, longevity pay based on continuous service since 1977. . The government moved"
}
] | [
{
"docid": "14523690",
"title": "",
"text": "the National Guard presents nonjusticiable issue); Orloff, 345 U.S. at 93, 73 S.Ct. at 540 (“not within the power” of the courts to review determination to assign doctor to particular duties in the medical field); Wilson v. Walker, 777 F.2d 427, 429 (8th Cir. 1985) (“[traditional notions of judicial restraint and of the separation of powers” require courts to refuse to review military duty assignments); Nieszner v. Mark, 684 F.2d 562, 565 (8th Cir.1982) (challenge to Air Force regulation imposing mandatory age restrictions for commissioned officers is nonjusticiable); Perkins v. Rumsfeld, 577 F.2d 366, 368 (6th Cir.1978) (no jurisdiction over decision to transfer function from one military establishment to another); Schulke v. United States, 544 F.2d 453, 455 (10th Cir.1976) (decision whether “to prefer charges under the Uniform Code of Military Justice” not subject to judicial review); Turner v. Egan, 358 F.Supp. 560, 563 (D.Alaska), aff'd mem., 414 U.S. 1105, 94 S.Ct. 831, 38 L.Ed.2d 733 (1973) (no review of forced retirement of officers after specified number of years of military service). Although the Claims Court had the authority to enter judgment for the amount of ASP that was concededly due because of procedural defects, that is as far as it could go. III. Voge counters, however, that even if the Claims Court’s review of the ASP termination decision is limited to procedural error the court nonetheless must correct any errors in her service records “collateral” to its award of ASP. She relies on 28 U.S.C. § 1491(a), which in pertinent part provides: (1) The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.... (2) To provide an entire remedy and to complete the relief afforded by the judgment, the court may, as an incident of and collateral to any such judgment, issue orders directing restoration to office or position, placement in"
},
{
"docid": "13471405",
"title": "",
"text": "a determination of whether the military seeks to achieve legitimate ends by means designed to accommodate the individual right at stake to an appropriate degree. A. Although the treatment of justiciability by the parties in their briefs is sparse, WIANG argued below that staffing and the nondiscriminatory administration of its regulations governing the retention of personnel are of sufficient importance to preclude our review at this stage. Traditionally, support for the view that claims concerning the composition of the military do not lie within the purview of the judiciary have been found in Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953) and Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973). In an oft-quoted passage from Orloff, the Supreme Court noted: [JJudges are not given the task of running the Army. The responsibility for setting up channels through which [complaints of discrimination, favoritism, etc.] can be considered and fairly settled rests upon the Congress and. upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. Orloff, 345 U.S. at 93-94, 73 S.Ct. at 540. But reading Orbff to support broad deference to the military ignores the narrow context in which this language is meant to apply. Deference to the military only affected the Supreme Court’s judgment as to the merits of Orloffs constitutional claim, not the question of whether it should have reviewed the claim at all. Id., 345 U.S. at 91, 73 S.Ct. at 539. Gilligan, which arose out of the tragic events at Kent State, contains similarly sweeping language. According to the Gilligan Court, the Constitution vests “[t]he complex, subtle and professional decisions as to the composition, training, equipping, and control of a military force” exclusively in the legislative and executive branches. Gilligan, 413 U.S. at 10, 93 S.Ct. at 2446. However, the decision not"
},
{
"docid": "14523695",
"title": "",
"text": "compel courts “to allow the widest possible latitude to the armed services in their administration of personnel matters.” Sanders v. United States, 594 F.2d 804, 813, 219 Ct.Cl. 285 (1979); see also Orloff, 345 U.S. at 94, 73 S.Ct. at 540. Accordingly, absent a statute or regulation entitling a service member to a promotion as a matter of law, the Claims Court has no authority to entertain this claim. Ewanus v. United States, 225 Ct.Cl. 598 (1980); Curry v. United States, 609 F.2d 980, 983, 221 Ct.Cl. 741 (1979). This demand was properly refused. Conclusion The Claims Court’s judgment in favor of Voge for $30,000 in ASP is affirmed, but that portion of the order purporting to review her military service records is vacated. AFFIRMED IN PART AND VACATED IN PART. . There is a significant difference between relatively minor and routine military personnel actions, like the denial of ASP, and the denial of all pay and allowances through allegedly unlawful discharge from military service because of statutory violations by the military departments. Nothing we say here is directed to the latter type claim which is extensively addressed in cases like Sanders v. United States, 594 F.2d 804, 814 (Ct.Cl.1979), Yee v. United States, 512 F.2d 1383, 1388 (Ct.Cl.1975), and Clackum v. United States, 296 F.2d 226, 229 (Ct.Cl.1961). . Koster v. United States, 685 F.2d 407, 412 (Ct.Cl.1982), held that even where an action vacating an officer’s temporary grade was discretionary it was subject to review for constitutional violations. Here, however, there was nothing in the revocation of Voge’s clinical credentials, the composition of her service records, or the termination of ASP that rises to the level of a constitutional violation. We save for another day the difficult question of the court's power of review when a clear constitutional violation is established. See Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir.1971) (establishing four-factor test to apply to determine justiciability when a constitutional violation is claimed); see also Note, Judicial Review of Constitutional Claims Against the Military, 84 Colum.L.Rev. 387 (1984)."
},
{
"docid": "14523689",
"title": "",
"text": "407 (1973). Here the “ultimate responsibility” for making the determination whether to terminate ASP was explicitly vested by Congress in the military. Courts do not have the institutional competence to make the substantive determination that a particular medical officer is deserving of additional compensation. Cf. Garbacz v. United States, 656 F.2d 628, 636 (Ct.Cl.1981) (Court of Claims had no authority to review tile decision by the Administrator of NASA to give plaintiffs less than maximum salary increases since that decision was “wholly within [the] agency’s discretion”). As the record shows, many military and medical factors went into the decision to deny Voge ASP, and it would be singularly inappropriate to second-guess the judgment of the military medical officers involved. Cf. Maier v. Orr, 754 F.2d 973, 984 (Fed.Cir.1985). This is like thousands of other routine personnel decisions regularly made by the services which are variously held nonjusticiable or beyond the competence or the jurisdiction of courts to wrestle with. See, e.g., Gilligan, 413 U.S. at 10, 93 S.Ct. at 2446 (“training, weaponry and orders” of the National Guard presents nonjusticiable issue); Orloff, 345 U.S. at 93, 73 S.Ct. at 540 (“not within the power” of the courts to review determination to assign doctor to particular duties in the medical field); Wilson v. Walker, 777 F.2d 427, 429 (8th Cir. 1985) (“[traditional notions of judicial restraint and of the separation of powers” require courts to refuse to review military duty assignments); Nieszner v. Mark, 684 F.2d 562, 565 (8th Cir.1982) (challenge to Air Force regulation imposing mandatory age restrictions for commissioned officers is nonjusticiable); Perkins v. Rumsfeld, 577 F.2d 366, 368 (6th Cir.1978) (no jurisdiction over decision to transfer function from one military establishment to another); Schulke v. United States, 544 F.2d 453, 455 (10th Cir.1976) (decision whether “to prefer charges under the Uniform Code of Military Justice” not subject to judicial review); Turner v. Egan, 358 F.Supp. 560, 563 (D.Alaska), aff'd mem., 414 U.S. 1105, 94 S.Ct. 831, 38 L.Ed.2d 733 (1973) (no review of forced retirement of officers after specified number of years of military service). Although the Claims"
},
{
"docid": "9463868",
"title": "",
"text": "do so in eases where the claim presents a nonjusticiable controversy — i.e., the claim is such that the court lacks “ability to supply relief.” Murphy v. United States, 993 F.2d 871, 872 (Fed.Cir.1993). A court is said to have such ability when “the duty asserted can be judicially identified and its breach judicially determined, and ... protection for the right can be judicially molded.” Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 700, 7 L.Ed.2d 663 (1962). See also Voge v. United States, 844 F.2d 776, 780 (Fed.Cir.1988) (“A controversy is ‘justiciable’ only if it is ‘one which the courts can finally and effectively decide, under tests and standards which they can soundly administer within their special field of competence.’” (quoting Greene v. McElroy, 254 F.2d 944, 953 (D.C.Cir.1958), rev’d on other grounds, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959))). Because “[o]rderly government requires that the judiciary be ... scrupulous not to interfere with legitimate Army matters,” Orloff v. Wil-loughby, 345 U.S. 83, 94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953), “[justiciability is a particularly apt inquiry when one seeks review of military activities.” Murphy, 993 F.2d at 872. An appellate court decides de novo whether a claim challenging a military decision presents a nonjusticiable political question. See, e.g., Bledsoe v. Webb, 839 F.2d 1357, 1359 (9th Cir.1988). B. The merits of a service secretary’s decision regarding military affairs are unquestionably beyond the competence of the judiciary to review. See, e.g., Orloff, 345 U.S. at 94, 73 S.Ct. at 540 (“While the courts have found occasion to determine whether one has been lawfully inducted and is therefore within the jurisdiction of the Army and subject to its orders, we have found no case where this Court has assumed to revise duty orders as to one lawfully in the service.”); Murphy, 993 F.2d at 874 (“[T]he merits of the Air Force’s decision to release [this officer] from active duty are beyond judicial reach.”); Sargisson, 913 F.2d at 922 (“A court lacks the special expertise needed to review reserve officers’ records and rank them on"
},
{
"docid": "6577439",
"title": "",
"text": "the instant renewed motion to dismiss. DISCUSSION . Defendant argues that while the court has the requisite subject matter jurisdiction to hear plaintiffs claim, the case is non-justiciable. In essence, defendant argues that promotion and assignment decisions are within the sole discretion of the military, and that this court does not have the capability or authority to review such personnel decisions. Plaintiff responds that this court can provide relief if the plaintiff can demonstrate a specific violation of federal law. Since plaintiff’s claim of discrimination based on race is potentially a violation of Title VII of the Civil Rights Act of 1964, plaintiff contends, this court is empowered to provide a remedy. Having jurisdiction over a claim is insufficient by itself to allow the court to grant relief. The issue must also be justiciable. Murphy v. United States, 993 F.2d 871, 872 (Fed.Cir.1993); Adkins v. United States, 30 Fed.Cl. 158, 162 (1993). Justiciability depends on “whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.” Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 700, 7 L.Ed.2d 663 (1962). A fundamental test of whether there is a non-justiciable question is whether there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department.” Id. at 217, 82 S.Ct. at 710. Because the Constitution delegates specific power over the military to the political branches, the courts have generally refrained from interfering in military decision making. “[J]udges are not given the task of running the military____ Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.” Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953). Judicial deference to the political branches extends to almost all military per sonnel decisions. “[W]e have recognized that there are ‘thousands of [ ] routine personnel decisions regularly made by the services which are variously held nonjusticiable or beyond the competence or the jurisdiction of"
},
{
"docid": "12998030",
"title": "",
"text": "the Armed Forces Examining and Entrance Station in St. Louis, Missouri. Defendants first argue that the issues raised herein are not justiciable. In support of this position, the Court has been cited to Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953). In this case, a doctor petitioned for a writ of habe-as corpus, asserting that he had been assigned to menial, and not medical, duties in the military. The Court held that it could not review the discretionary decision of how to assign men, and further stated that: The military constitutes a specialized community governed by a separate discipline from that of a civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. Id. at 94, 73 S.Ct. at 540. This attitude of non-intervention was reaffirmed in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (suit brought by doctor who was court-martialed for disobeying an order to establish a training program and additionally for making public statements against the Army) in which the Court noted While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience and the consequent necessity for imposition of discipline may render permissible within the military that which would be constitutionally impermissible outside it. Id. at 758, 94 S.Ct. at 2563. Again, in Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973), a suit to restrain the governor of the state of Ohio from prematurely calling out the National Guard, the Court stated: The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judg ments, subject always to civilian control of the Legislature and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which"
},
{
"docid": "17732902",
"title": "",
"text": "Nothing in plaintiffs resignation precludes plaintiff from applying for re-enlistment should his position as a technician be reinstated, so the fact that he is not currently a National Guardsman does not render his claim for reinstatement moot. Defendant next argues that plaintiffs claim is a routine military personnel decision beyond the competence of the judiciary to review. A claim is nonjusticiable when, notwithstanding the court’s jurisdiction over the claim, the claim is such that the court lacks the ability to supply relief. See Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Voge v. United States, 844 F.2d 776, 780 (Fed.Cir.1988). It is true that, “justiciability is a particularly apt inquiry when one seeks review of military activities.” Murphy v. United States, 993 F.2d 871, 872 (Fed.Cir.1993); see also Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 97 L.Ed. 842 (1953) (courts should be scrupulous not to interfere with legitimate military matters). However, “[n]ot every claim arising from a military decision presents a nonjustieiable controversy.” Adkins v. United States, 68 F.3d 1317, 1323 (Fed.Cir.1995). Indeed, military claims for wrongful discharge, back pay, severance pay, reinstatement, and assorted remedies routinely are heard and remedied (within statutory limits) by the courts. Although it is beyond this court’s expertise or competence to determine whether plaintiff is fit to fly, see Wilson v. Walker, 777 F.2d 427, 429 (8th Cir.1985) (claim that military officer improperly reassigned from flight status to non-flying status nonjusticiable), plaintiff does not seek a judicial determination of his fitness to fly. Rather, he seeks to receive back pay or statutory severance pay based on alleged violations of procedures given him by the Constitution and by National Guard regulations. This claim presents a justiciable controversy. E. g., Adkins, 68 F.3d at 1323-25 (distinguishing justiciable claim that military personnel violated regulations by ignoring record and considering materials outside record in considering plaintiffs promotion from nonjusticiable claim that military personnel failed to promote plaintiff). 3. Whether the NGTA bars plaintiffs claims for reinstatement and back pay Under the Back Pay Act, 5 U.S.C. § 5596(b)(1), a"
},
{
"docid": "23583064",
"title": "",
"text": "thereby lessening the administrative burden of decision. . This aspect of the nonreviewability issue was starkly presented in Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953), where the Supreme Court held that a government-trained physician who was lawfully inducted into the Army may not obtain judicial review of his assignments to duty. Speaking for the Court, Justice Jackson wrote: We know that from top to bottom of the Army the complaint is often made, and sometimes with justification, that there is discrimination, favoritism or other objectionable handling of men. But judges are not given the task of running the Army. The responsibility for setting up channels through which such grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. While the courts have found occasion to determine whether one has been lawfully inducted and is therefore within the jurisdiction of the Army and subject to its orders, we have found no case where this Court has assumed to revise duty orders as to one lawfully in the service. Id. at 93-94, 73 S.Ct. at 540. Other cases holding that challenges to the military’s decisions were nonjusticiable have also turned on considerations related to the doctrine of separation of powers. See, e.g., Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973); Laird v. Tatum, 408 U.S. 1 (1972). See also Curran v. Laird, 136 U.S.App.D.C. 280, 420 F.2d 122 (1969). . Kendler v. Wirtz, 388 F.2d 381, 383 (3 Cir. 1968). . Panama Canal Co., supra, 356 U.S. at 317-18, 78 S.Ct. at 757. See also Rural Electrification Administration v. Northern States Power Co., 373 F.2d 686, 700 (8 Cir.), cert. denied, 387 U.S. 945, 87 S.Ct. 2079, 18 L.Ed.2d 1332 (1967) (citations omitted): The studied"
},
{
"docid": "22044026",
"title": "",
"text": "Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953). Aside from the limited warrant of courts to invade the military province, intrusion also raises a separation of powers issue. Congress and the Executive have primary authority and responsibility over matters military. “We do not sit as a committee of review, nor are we vested with the power of veto.” TVA, 437 U.S. at 194, 98 S.Ct. at 2302. Accordingly, we have recognized that there are “thousands of [ ] routine personnel decisions regularly made by the services which are variously held nonjusticiable or beyond the competence or the jurisdiction of courts to wrestle with.” Voge v. United States, 844 F.2d 776, 780 (Fed.Cir.1988) (and cases cited). We have emphasized that judicial review is only appropriate where the Secretary’s discretion is limited, and Congress has established “tests and standards” against which the court can measure his conduct. See Sargisson v. United States, 913 F.2d 918, 922 (Fed.Cir.1990); Voge, 844 F.2d at 780. Unless such a test or standard is provided, courts must abstain. When the military is given unlimited discretion by Congress, it is nevertheless bound to follow its own procedural regulations if it chooses to implement some. Sargisson, 913 F.2d at 921. But the utility of the distinction between procedural and substantive matters in assessing a court’s ability to review military decisions should not be overemphasized. On procedural matters, the test or standard is inherent. A court may appropriately decide whether the military followed procedures because by their nature the procedures limit the military’s discretion. The court is not called upon to exercise any discretion reserved for the military, it merely determines whether the procedures were followed by applying the facts to the statutory or regulatory standard. Murphy"
},
{
"docid": "20172338",
"title": "",
"text": "to supply relief.’ ” Adkins v. United States, 68 F.3d 1317, 1322 (Fed.Cir.1995), quoting Murphy v. United States, 993 F.2d 871, 872 (Fed. Cir.1993). “Justiciability is a particularly apt inquiry when one seeks review of military activities,” Murphy, 993 F.2d at 872; “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.” Id., quoting Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 97 L.Ed. 842 (1953). On that point, the law in this Circuit is clear and unequivocal: The Constitution vests “[t]he complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force” exclusively in the legislative and executive branches. Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1511 (D.C.Cir.1989), quoting Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973); see also Adkins, 68 F.3d at 1322 (“The merits of a service secretary’s decision regarding military affairs are unquestionably beyond the competence of the judiciary to review.”); and Heisig, 719 F.2d at 1156 (“[Rjesponsibility for determining who is fit or unfit to serve in the armed services is not a judicial province.... ”). If one applies those principles, Daniels’s claim appears to be plainly nonjusticiable. It asks this Court to inject itself in military matters, second guess a disciplinary sanction imposed by the Commandant at the U.S. Naval Academy, and to overturn a military personnel decision on its merits. Daniels maintains, though, that his case falls outside of the general rule, and he points out that courts have been willing to hear cases where the litigant claimed that the military had failed to comply with its own regulations. As the Adkins opinion sets out, there are some narrow circumstances in which courts will review this type of claim: “[A]lthough the merits of a decision committed wholly to the discretion of the military are not subject to judicial review, a challenge to"
},
{
"docid": "3371439",
"title": "",
"text": "2362, 2366, 76 L.Ed.2d 586 (1983) (quoting Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 540, 97 L.Ed.2d 842 (1953)). The strategy and tactics employed on the battlefield are clearly not subject to judicial review. See, e.g., DaCosta v. Laird, 471 F.2d 1146, 1155-56 (2d Cir.1973) (challenge to presidential directive to mine Vietnamese harbors and continue air and naval strikes presents a nonjusticiable political question). “[T]he same considerations which preclude judicial examination of the decision to act must necessarily bar examination of the manner in which that decision was executed by the President’s subordinates.” Rappenecker v. United States, 509 F.Supp. 1024, 1030 (N.D.Cal.1980). Not only do courts lack the expertise to evaluate military tactics, but they will often be without knowledge of the facts or standards upon which military decisions have been based. Id. at 1029 (alleged negligence in military action to free a captured vessel was nonjusticiable). It matters not that the military decision here involves the defense of national borders rather than the projection of force abroad. The elementary canons of judicial caution are not limited to actions taken during actual wartime, but may extend to many other aspects of military operations. In declining to rule on the allegation that the training, weaponry and orders of a state National Guard program made inevitable the unnecessary use of fatal force, the Supreme Court declared: It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible — as the Judicial Branch is not — to the electoral process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973). So too does this case beckon courts into “complex, subtle, and professional"
},
{
"docid": "22044025",
"title": "",
"text": "jurisdiction. However, the existence of jurisdiction does not confirm the court’s ability to supply relief. Just as “[a] grant of jurisdiction to issue compliance orders hardly suggests an absolute duty to do so under all circumstances,” TVA v. Hill, 437 U.S. 153, 193, 98 S.Ct. 2279, 2301, 57 L.Ed.2d 117 (1978) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591, 88 L.Ed. 754 (1944)), so too, here. The issue must also be justiciable; it must be within the competency of the court. Justiciability is distinct from jurisdiction; it depends on “whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.” Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 700, 7 L.Ed.2d 663 (1962). Justiciability is a particularly apt inquiry when one seeks review of military activities. [JJudges are not given the task of running the Army. The responsibility for setting up channels through which [] grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953). Aside from the limited warrant of courts to invade the military province, intrusion also raises a separation of powers issue. Congress and the Executive have primary authority and responsibility over matters military. “We do not sit as a committee of review, nor are we vested with the power of veto.” TVA, 437 U.S. at 194, 98 S.Ct. at 2302. Accordingly, we have recognized that there are “thousands of [ ] routine personnel decisions regularly made by the services which are variously held nonjusticiable or beyond the competence or the jurisdiction of courts to wrestle with.” Voge v. United States, 844 F.2d 776, 780 (Fed.Cir.1988)"
},
{
"docid": "18027487",
"title": "",
"text": "upon which relief can be granted, we review the propriety of that dismissal de novo. Boyle v. United States, 200 F.3d 1369, 1372 (Fed.Cir.2000). A motion to dismiss under Court of Federal Claims Rule 12(b)(4) for failure to state a claim upon which relief can be granted is appropriate when the facts asserted by the claimant do not entitle him to a legal remedy. In reviewing the dismissal, the court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in the claimant’s favor. Id. We decide de novo whether a claim challenging a military decision presents a nonjusticiable question. Adkins v. United States, 68 F.3d 1317, 1322 (Fed.Cir.1995). II The fundamental question of justiciability we confront here is whether “tests and standards” exist against which a court can measure the challenged action. Voge v. United States, 844 F.2d 776, 780 (Fed.Cir.1988). Because “decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments,” Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973), the substance of such decisions, like many other judgments committed to the discretion of government officials, is frequently beyond the institutional competence of courts to review. Voge, 844 F.2d at 780. Judgments made by military officials or administrative bodies that a particular officer does not merit promotion or retention fall into this category, and courts will refuse on jurisprudential grounds to review such decisions, even if the court has jurisdiction to do so. Based on this principle, neither the Court of Federal Claims nor this court will review those specific conclusions of military review boards that speak to the question of whether an officer deserved to be promoted or retained in service. Such unreviewable determinations include a conclusion that removal of a defective OER would not have made any difference to an officer’s prospects for retention on active duty in the reserves, Sargisson v. United States, 913 F.2d 918, 922 (Fed.Cir.1990), or prospects for promotion, Fluellen v. United States, 225 F.3d 1298, 1304 (Fed.Cir.2000). WRere, however, review is sought not of the substance"
},
{
"docid": "21577425",
"title": "",
"text": "to determine whether under those principles that remedy is appropriate in this case.” The Secretary moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief may be granted. In terms more appropriate to a Rule 12(b)(1) motion, however, the Secretary argued that appellant’s claims are not justiciable and that the district court should therefore dismiss the case for lack of jurisdiction. After the Board had issued its recommendations, the district court granted the Secretary’s motion.to dismiss. On authority of Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), the court held that appellant’s complaint is nonjusticiable, reasoning that the relief sought therein would require the court “to substantially interfere in such a manner as to seriously impede the Air Force in the performance of its vital duty of conducting the orderly process of promotion and advancement of personnel.” 648 F.Supp. at 386. II. Justiciability The justiciability of this case involving a claim to a military promotion and distinct claims for the correction of military records is limited by the fundamental and highly salutary principle that: [Jjudges are not given the task of running the Army. The responsibility for setting up channels through which [complaints of discrimination, favoritism, et cetera ] can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953). The Constitution vests “[t]he complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force” exclusively in the legislative and executive branches. Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973). Appellant’s request for retroactive promotion falls squarely within the realm of nonjusticiable military personnel decisions. To grant such relief would require us"
},
{
"docid": "21577426",
"title": "",
"text": "and highly salutary principle that: [Jjudges are not given the task of running the Army. The responsibility for setting up channels through which [complaints of discrimination, favoritism, et cetera ] can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953). The Constitution vests “[t]he complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force” exclusively in the legislative and executive branches. Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973). Appellant’s request for retroactive promotion falls squarely within the realm of nonjusticiable military personnel decisions. To grant such relief would require us to second-guess the Secretary’s decision about how best to allocate military personnel in order to serve the security needs of the Nation. This court is not competent to compare appellant with other officers competing for such a promotion. Not only is that task inherently unsuitable to the judicial branch, but also Congress has vested in the Secretary alone the authority to determine whether the original selection boards erred in comparing appellant to the other candidates for promotion. See 10 U.S.C. § 628(b)(1); cf. VanderMolen v. Stetson, 571 F.2d 617 (D.C.Cir.1977) (promotion granted by Air Force may not be rescinded by Air Force based upon illegitimate consideration); see also Guy v. United States, 608 F.2d 867, 874, 221 Ct.Cl. 427 (1979) (court cannot order promotion absent “clear, legal entitlement to it,” because “[promotion under the selection board system results from the exercise of discretionary functions reserved for the Executive branch”). Insofar as Major Kreis seeks a retroactive promotion by judicial decree, therefore, we affirm the district court’s dismissal of his case as nonjusticiable. There is also"
},
{
"docid": "14523687",
"title": "",
"text": "proposes that judicial review is therefore foreclosed because of an absence of jurisdiction, as indeed it was in Adair with variable incentive pay (VIP), a form of special compensation to medical personnel similar to ASP. But here we have a statute which all agree mandates payment of ASP until discretion is exercised to deny or terminate it. Adair addressed a statute that did not require payment until a discretionary decision was taken to pay the VIP; it was not a money-mandating statute. See also Pardo v. United States, 648 F.2d 1330, 1333 (Ct.Cl.1981). What we face is a jurisprudential question: Can the Claims Court review the military’s exercise of discretion when it has jurisdiction under the Tucker Act because of the mandatory monetary feature of the statute? We think not. It presents a non-justiciable question. A controversy is “justiciable” only if it is “one which the courts can finally and effectively decide, under tests and standards which they can soundly administer within their special field of competence.” Greene v. McElroy, 254 F.2d 944, 953 (D.C.Cir.1958), rev’d on other grounds, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); see also Egan v. Dep’t of Navy, 802 F.2d 1563, 1581 (Fed.Cir.1986) (Markey, C.J., dissenting), rev’d, — U.S.-, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988). Here there are no tests or standards for the court to apply in determining whether the decision to terminate ASP is correct. Cf. American Fed’n of Gov’t Employees, Local 2017 v. Brown, 680 F.2d 722, 726 (11th Cir.1982) (decision to contract out military services unreviewable where there were no guidelines against which the agency decision could be measured). Instead, Congress provided only that the determination to deny ASP may be made “at any time” by the Secretary. “The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments ...,” and “[t]he ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability.” Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d"
},
{
"docid": "1367481",
"title": "",
"text": "composition, training, equipping, and control of a military force are essentially professional military judgments,” Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973), the substance of decisions such as whether or not a particular officer should be promoted, “is frequently beyond the institutional competence of courts to review.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed.Cir.2002), citing Voge v. United States, 844 F.2d 776, 780 (Fed.Cir.1988). In Voge the court stressed that “[j]udicial deference must be 'at its apogee’ in matters pertaining to the military and national defense.” 844 F.2d at 779, citing Rostker v. Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 2654-55, 69 L.Ed.2d 478 (1981). See also Adkins v. United States, 68 F.3d 1317, 1322 (Fed.Cir.l995)(“the merits of a service secretary’s decision regarding military affairs are unquestionably beyond the competence of the judiciary to review.”). As the Federal Circuit recently observed, courts are reluctant to intervene in the merits of promotion decisions because of: the court’s incurable lack of knowledge of the total grist which the boards sift, [and] also ... a preference not to meddle with the internal workings of the military. The promotion of an officer in the military service is a highly specialized function involving military requirements of the service and the qualifications of the officer in comparison with his contemporaries, plus expertise and judgment possessed only by the military. No court is in a position to resolve and pass upon the highly complicated questions and problems involved in the promotion procedure. Richey v. United States, 322 F.3d 1317, 1327 (Fed.Cir.2003), citing Porter v. United States, 163 F.3d 1304, 1316-17 (Fed.Cir.1998). However, “although the merits of a decision committed wholly to the discretion of the military are not subject to judicial review, a challenge to the particular procedure followed in rendering a military decision may present a justiciable controversy.” Adkins, 68 F.3d at 1323 (emphasis in original). “A court may appropriately decide whether the military followed procedures because by their nature the procedures limit the military’s discretion.” Murphy v. United States, 993 F.2d 871, 873 (Fed.Cir.1993). In"
},
{
"docid": "6577440",
"title": "",
"text": "can be judicially molded.” Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 700, 7 L.Ed.2d 663 (1962). A fundamental test of whether there is a non-justiciable question is whether there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department.” Id. at 217, 82 S.Ct. at 710. Because the Constitution delegates specific power over the military to the political branches, the courts have generally refrained from interfering in military decision making. “[J]udges are not given the task of running the military____ Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.” Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953). Judicial deference to the political branches extends to almost all military per sonnel decisions. “[W]e have recognized that there are ‘thousands of [ ] routine personnel decisions regularly made by the services which are variously held nonjusticiable or beyond the competence or the jurisdiction of courts to wrestle with.’ ” Murphy v. United States 993 F.2d at 871 (quoting Voge v. United States, 844 F.2d 776, 780 (Fed.Cir.1988)). Such deference also extends to the procedures established by the military to address personnel grievances. “The responsibility for setting up channels through which [personnel] grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian.” Orloff v. Willoughby, 345 U.S. at 93-94, 73 S.Ct. at 540. As this court recently noted: [I]t would be hard to measure the damaging effect of shifting this type of sensitive personnel and management decision from trained military professionals, to a nonspecialist judiciary whose constitutional role is to apply and interpret legal standards as they relate to specific facts. Taylor v. United States, 33 Fed.Cl. 54, 58 (Fed.Cl. filed April 5, 1995). Such broad deference by the judiciary does not mean that every personnel decision made by any service branch"
},
{
"docid": "14523688",
"title": "",
"text": "rev’d on other grounds, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); see also Egan v. Dep’t of Navy, 802 F.2d 1563, 1581 (Fed.Cir.1986) (Markey, C.J., dissenting), rev’d, — U.S.-, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988). Here there are no tests or standards for the court to apply in determining whether the decision to terminate ASP is correct. Cf. American Fed’n of Gov’t Employees, Local 2017 v. Brown, 680 F.2d 722, 726 (11th Cir.1982) (decision to contract out military services unreviewable where there were no guidelines against which the agency decision could be measured). Instead, Congress provided only that the determination to deny ASP may be made “at any time” by the Secretary. “The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments ...,” and “[t]he ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability.” Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973). Here the “ultimate responsibility” for making the determination whether to terminate ASP was explicitly vested by Congress in the military. Courts do not have the institutional competence to make the substantive determination that a particular medical officer is deserving of additional compensation. Cf. Garbacz v. United States, 656 F.2d 628, 636 (Ct.Cl.1981) (Court of Claims had no authority to review tile decision by the Administrator of NASA to give plaintiffs less than maximum salary increases since that decision was “wholly within [the] agency’s discretion”). As the record shows, many military and medical factors went into the decision to deny Voge ASP, and it would be singularly inappropriate to second-guess the judgment of the military medical officers involved. Cf. Maier v. Orr, 754 F.2d 973, 984 (Fed.Cir.1985). This is like thousands of other routine personnel decisions regularly made by the services which are variously held nonjusticiable or beyond the competence or the jurisdiction of courts to wrestle with. See, e.g., Gilligan, 413 U.S. at 10, 93 S.Ct. at 2446 (“training, weaponry and orders” of"
}
] |
872539 | Brawley testified that Mr. Esteves admitted that he ... had known [Mr. Hernandez-Bautista] for several years; that he was actually working for him— or working with him ... He made arrangements in Mexico with him to help transport these people — or guide these people in the United States, and that they conspired together to move these aliens ...” Rec., vol. IV at 26. The district court overruled the objection to this testimony, stating it did not “believe [Agent Brawley] to be stating a legal conclusion.” Id. at 27. We agree. Agent Brawley clearly used the term as a synonym for “agreed” and not as a legal term of art. Moreover, unlike one of the opinions cited by Mr. Hernandez-Bautista, REDACTED Agent Brawley’s use of the word “conspired” was not purposefully elicited by the government to improperly influence or confuse the jury. The district court did not abuse its discretion when it overruled the objection. For the aforementioned reasons, we AFFIRM Mr. Hernandez-Bautista’s conviction. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. | [
{
"docid": "17792138",
"title": "",
"text": "A. Well, if— MS. BOWE: I object to this question and answer. It’s a legal conclusion and I object to any questions continuing to call for legal conclusions. It’s beyond the scope of this witness. THE COURT: That’s— MR. LIPSCOMB: It goes to his motive for testifying right now, Judge. THE COURT: The objection is overruled. The witness is instructed to answer the question as best he can. A. Well, if you call three times a conspiracy, fine. (Tr. 1172-73) (emphasis added). Espino argues that the district court abused its discretion by requiring him to answer whether he was “admitting the conspiracy” because the question demanded a legal conclusion and created the danger that the jury gave his response undue weight. Our decision in United States v. Bashes, 649 F.2d 471 (7th Cir.1980), cert. denied, 450 U.S. 1000, 101 S.Ct. 1706, 68 L.Ed.2d 201 (1981), supports Espino’s position, and we believe the reasons articulated there proscribe the admission of his testimony under Rule 701. In Bashes, we held that the district court acted within its discretion in prohibiting cross-examination of a key prosecution witness as to whether he “unlawfully, knowingly and wilfully conspire[d]” with the defendant and others to defraud the United States. 649 F.2d at 478. We reasoned that this questioning contained legal terms of art and called for improper opinion testimony by a non-expert witness: When, as here, a witness is asked whether the conduct in issue was “unlawful” or “wilful” or whether the defendants “conspired,” terms that demand an understanding of the nature and scope of the criminal law, the trial court may properly conclude that any response would not be helpful to the trier of fact. The witness, unfamiliar with the contours of the criminal law, may feel that the legal standard is either higher or lower than it really is. If either event is true the jury may accord too much weight to such a legal conclusion. Id. Similarly, the question posed to Espino, “[Yjou’re admitting the conspiracy, aren’t you,” required a conclusion regarding the legal implications of his conduct. Espino’s lay answer to this"
}
] | [
{
"docid": "1459274",
"title": "",
"text": "(citations' omitted). Our focus, then, must be on the Government’s knowledge when, exercising its deportation authority, it arranged for the departure of the witnesses, not on any of its subsequent conduct. 2. The district court held that the Government did not act in bad faith when it deported the witnesses on November 4, 1998. At that time, Mr. Romero-Bautista’s attorney had interviewed almost all of the witnesses, including the one who clearly presented the most potential as a de fense witness, Hernandez. He had not yet taken depositions, however, because Mr. Romero-Bautista himself was incapacitated and could not attend. Mr. Romero-Bautista’s attorney had determined that Mr. Romero-Bautista would not be capable of waiving his right to attend any deposition because the medical staff treating him had administered morphine to alleviate his pain. On November 2, the district court held a hearing to determine whether it ought to continue to detain the vehicle’s passengers as material witnesses. (They had not been charged with any criminal offense.) The district court considered the likelihood of any improvement to Mr. Romero-Bautis-ta’s condition, the expense of detaining the witnesses being held, and the value of the possible testimony of the passengers. At the end of the hearing, the court decided to lift its earlier order that had required the detention of the passengers as material witnesses. It is clear that, at the time it made its ruling, the district court understood that, once its detention order was lifted, the passengers would be subject to deportation: The I.N.S. is represented here by one of its agents and I think that the proper and expeditious thing to do is for you to continue, Agent, in doing what you normally do in a situation of this nature, and return these aliens, now non-material witnesses, to their nation, home of origin, and we will proceed accordingly with the two Defendants who are still here. R.37 at 16. The Government acted to return the passengers to their country only after a United States district court specifically held that they were not material witnesses in the criminal case of Mr. Romero-Bautis-ta"
},
{
"docid": "3667882",
"title": "",
"text": "been warned of the consequences of further delaying the case. Given this history, we agree with the district court that the time for showing McCoy leeway had expired and it was time to enforce the court’s deadlines. Accordingly, we discern no abuse of discretion. Cf. Lee v. Max Int’l, LLC, 638 F.3d 1318, 1323-24 (10th Cir. 2011) (finding no abuse of discretion in dismissal with prejudice where “the record show[ed] that a party failed to comply with a document request and two court orders compelling production of materials”). IV. Denying Reconsideration The district court denied McCoy’s final motion to reconsider, explaining that its August 18 order, which set the amendment deadline at September 2, was mailed to the proper address. Moreover, the court observed, McCoy had no right to an extension beyond August 15, and he made no inquiries as to the status of his August 15 extension request until September 6. Finally, the court noted that McCoy had been given ample time—indeed, over 70 days—to amend his complaint. Under these circumstances, we conclude that the district court did not abuse its discretion in denying reconsideration. See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008) (indicating that reconsideration motions are reviewed only for an abuse of discretion). Conclusion The judgment of the district court is affirmed. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. . To the extent McCoy, argues for the first time in his reply brief that he properly served these three defendants, that argument is waived. See Gutierrez v. Cobos, 841 F.3d 895, 902 (10th Cir. 2016) (observing that “a party waives issues and arguments raised"
},
{
"docid": "16824117",
"title": "",
"text": "Oregon Department of Corrections and recites his personal participation in and liability for the constitutional violations. 1 R. 139-40. Such a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 129 S.Ct. at 1949 (internal quotation marks and citation omitted). Allegations of Mr. Williams’s involvement are no more than “naked assertions].” Twombly, 550 U.S. at 557, 127 S.Ct. 1955. Because the allegations against Mr. Williams do not show an affirmative link between the constitutional deprivation and his personal participation, Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009), Mr. Barrett failed to state a claim on which relief could be granted against Mr. Williams. Lastly, we review a district court’s denial of a motion to amend a complaint for abuse of discretion. Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir.2007). The district court denied Mr. Barrett’s motion to amend because it failed to set forth what had been amended in the new complaint, 1 R. 8, as required by local rule. See E.D. Okla. LCvR 7.1(o). The court did not abuse its discretion in denying the motion to amend for failure to comply with local rules. See Lambertsen v. Utah Dep’t of Corr., 79 F.3d 1024, 1029-30 (10th Cir.1996). We AFFIRM the grant of Defendant Williams’s motion to dismiss, AFFIRM the denial of Plaintiffs motion to amend, and REVERSE the district court’s grant of the motion to dismiss by Defendants Orman, Workman, and Morton. We GRANT appellant’s motion to proceed without prepayment of fees and remind appellant that he is obligated to continue to make partial payments until the filing fee is paid in full. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . Randall Workman, the current warden of OSP, has been automatically substituted for Mr. Sirmons as the correct party under Federal Rule of Civil Procedure 25(d). ."
},
{
"docid": "22304158",
"title": "",
"text": "“a financial inability to pay the required [filing] fees and the existence of a reasoned, non-frivolous argument on the law and facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir.1997) (internal quotation marks omitted) (quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir.1991)). Though we dismiss Mr. Watkins’s appeal for failure to timely file a notice of appeal and application for COA, we nonetheless conclude that the arguments he raised in support of his appeal are not frivolous. Therefore, we GRANT Mr. Watkins leave to proceed IFP subject to the requirements in 28 U.S.C. § 1915(b). This appeal is DISMISSED. This Order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th CIR. R. 32.1. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th CIR. R. 34.1(G). The case is therefore ordered submitted without oral argument. . Because Mr. Watkins is proceeding pro se, we review his pleadings and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir.2007). . March 25, 2006, thirty days after February 23, 2006, marked the end of the court-ordered filing period. That date fell on a Saturday. Therefore, by operation of Fed.R.Civ.P. 6(a), Mr. Watkins’s curative pleadings were due on Monday, March 27, 2006. . Rule 4(a)(4) provides that certain motions filed within ten days of the entry of judgment toll the time to file a notice of appeal. Notably, he filed nothing within the operative period. Also absent from the record is any suggestion that Mr. Watkins sought to reopen the time in which to file an appeal. Pursuant to 28 U.S.C. § 2107(c), \"the district court may, upon motion filed"
},
{
"docid": "23388153",
"title": "",
"text": "for Leave to Amend We review for abuse of discretion the district court’s denial of Mr. Fields’s motions to amend his complaint. See Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir.1997). We discern no error by the court. The court characterized the proposed pleading as not really an amended complaint but an effort to show exhaustion. Mr. Fields does not dispute this characterization. Because Mr. Fields was given an additional opportunity to file such support, he suffered no prejudice. Of course, we could also reject the appeal of this ruling on the ground that Mr. Fields has not provided an adequate record on appeal. See Taylor v. Phelan, 9 F.3d 882, 884 n. 4 (10th Cir.1993) (declining to address an issue when evidentiary materials necessary for proper consideration of the issue are not included in the record on appeal). D. State-Law Claims Because we affirm the dismissal of all Mr. Fields’s federal-law claims, dismissal of his state-law claims under 28 U.S.C. § 1367(c)(3) was proper. The judgments of the district court are AFFIRMED. We DENY Mr. Fields’s Motion for Reconsideration filed in this court on December 26, 2006; to the extent that it seeks relief on appeal, Mr. Fields had the opportunity to address the issues in his later briefs to this court. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . Section 1997e(a) 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, prison, or other correctional facility until such administrative remedies as are available are exhausted."
},
{
"docid": "1459255",
"title": "",
"text": "deportation. Mr. Chaparro-Aleantara informed the court that he had withdrawn his objection to the release of the witnesses. Counsel for Mr. Romero-Bautista, however, argued that the witnesses should continue to be detained in order to permit him to take their depositions. Mr. Romero-Bautista’s attorney told the court that Mr. Romero-Bau-tista would not be able to attend the depositions due to his medical condition. Counsel further informed the court that he had attempted to obtain from Mr. Romero-Bautista a waiver of his right to attend the depositions, but his client was sedated heavily with morphine and, thus, in counsel’s view, incapable of waiving his right to attend the depositions. The district court ruled that the passengers should no longer be held as material witnesses. The district court first noted the high expense of continuing to detain the witnesses and the indefinite duration of Mr. Romero-Bautista’s medical condition. It also considered the potential value of the passengers’ expected testimony. The district court concluded that the passengers, who were not charged with any crime, ought not be detained as potential witnesses. They therefore were released from the court’s custody with the expectation that the INS would then deport them. Among those released were Armando Ruiz-Ruiz and Jacoba Hernandez. Both Ruiz-Ruiz and Hernandez were returned to Mexico on November 4. Mr. Romero-Bautista later moved to dismiss the indictment against him on the ground that the passengers were material witnesses who had been deported improperly. The district court held a hearing on that motion on February 10, 1999. At that hearing, Mr. Romero-Bautista offered the testimony of Sofia Stanford, his court-appointed translator. Stanford stated that the detained witnesses had said, in prison interviews, that Mr. Romero-Bautista was not involved in transporting the aliens. Stanford testified that each of the -witnesses had been asked whether Mr. Romero-Bautista was transporting illegal aliens; she testified that each of the witnesses had stated that Mr. Romero-Bautista was not a “coyote,” or someone who brought illegal aliens into the United States for profit. Further, she testified, they all stated that Mr. Romero-Bautista had not been driving the van. She also"
},
{
"docid": "15138252",
"title": "",
"text": "the police should know are reasonably likely to elicit an incriminating response from the suspect.’ ” United States v. Rambo, 365 F.3d 906, 909 (10th Cir.2004) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)). There was no interrogation. According to Mr. Reed, while he was explaining the situation to Sergeant Van Curen immediately following the latter’s arrival at the OK Corral Club, Mr. Cintron “jumped in on the conversation,” ROA, Vol 2, at 24. Sergeant Van Curen also testified that Mr. Cintron “voluntarily contribut[ed] to [the] conversation.” Id. at 38. Neither Sergeant Van Curen, Mr. Reed, nor any of the other security guards had directed any questions to Mr. Cintron at that time or intended to include him in their conversation. Therefore, Mr. Cintron did not make any of the inculpatory statements in response to a custodial interrogation by a government actor, and his statements should not be suppressed. III. CONCLUSION For the foregoing reasons, we affirm the district court’s denial of Mr. Cintron’s motions to suppress. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . Mr. Reed explained that \"a tail” is \"a slang term ... used by prisoners ... to indicate whether [they have] paper time, [a] suspended sentence and so forth, or ... if [they’re] on parole or probation.” ROA, Vol. 2, at 23. . Mr. Cintron argues that because Mr. Reed was certified by the Council on Law Enforcement Education and Training (\"CLEET”) as a basic police officer, he was necessarily acting as a police officer. But such state certification does not require us to conclude he was acting"
},
{
"docid": "5410666",
"title": "",
"text": "pursue aggravated enhancements for Romero-León’s 1999 drug crimes. Indeed, there is no evidence that anyone in 1999 — prosecutor or judge — even considered the two specific aggravating factors put forth by the Government here. For us to permit a federal district judge to, in essence, apply its own enhancement well after the fact “would denigrate the independent judgment” of New Mexico to execute its own laws. For Romero-León’s 1999 convictions, New Mexico declined to seek an enhanced sentence. He has, therefore, not been convicted of enough “serious drug offense[s]” to render himself punishable under the ACCA. Cf. United States v. Rodriquez, 553 U.S. 377, 389, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008) (“[I]n those cases in which the records that may properly be consulted do not show that the defendant faced the possibility of a recidivist enhancement, it may well be that the Government will be precluded from establishing that a conviction was for a[n ACCA-]qualifying offense.”). As such, we REVERSE and REMAND for the district court to re-sentence Romero-León sans application of the ACCA. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . This obviates any need to discuss whether Romero-León can re-litigate through § 2255 a claim decided against him on direct appeal, or whether Romero-León waived his ACCA argument by failing to object to the magistrate’s' recommendation in his § 2255 proceeding. . Both the Government and Romero-León have moved to supplement the record on appeal with various documents, including Romero-León's original 1999 indictments. We grant these motions, and we have considered the documents. . Though issued after Romero-León’s sentencing, Brooks nevertheless controls here. See United States v. Rivera-Nevarez, 418 F.3d 1104, 1107 (10th Cir.2005) (\"Decisions of statutory interpretation are fully retroactive because they do not change the law, but rather explain what the law has always meant.”)."
},
{
"docid": "15138253",
"title": "",
"text": "After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . Mr. Reed explained that \"a tail” is \"a slang term ... used by prisoners ... to indicate whether [they have] paper time, [a] suspended sentence and so forth, or ... if [they’re] on parole or probation.” ROA, Vol. 2, at 23. . Mr. Cintron argues that because Mr. Reed was certified by the Council on Law Enforcement Education and Training (\"CLEET”) as a basic police officer, he was necessarily acting as a police officer. But such state certification does not require us to conclude he was acting as a police officer. Instead, it is well settled that such \"acts of officers in the ambit of their personal pursuits” are not \"under color of [state] law.” Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); see also Haines v. Fisher, 82 F.3d 1503, 1508 (10th Cir.1996) (holding that on-duty police officers did not act under color of state law when they played a practical joke by staging a robbery). Mr. Cintron also argues that if Mr. Reed was not acting as a police officer, his actions violated numerous Oklahoma laws, such as assault, battery, and openly carrying a firearm. But these alleged violations of Oklahoma law do not affect our determination of whether Mr. Reed was acting as a government actor for the purposes of the Fourth Amendment or our consideration of the denial of his motions to suppress. .We question whether Mr. Cintron raised this argument at the district court. Absent good cause, we do not consider arguments not raised in the suppression proceedings at the"
},
{
"docid": "10623522",
"title": "",
"text": "standing alone, it is beyond peradventure that such vague allegations will not justify equitably tolling the limitations period. See Miller, 141 F.3d at 978 (noting that petitioner “has provided no specificity regarding the alleged lack of access [to legal materials] and the steps he took to diligently pursue his federal claims”). Furthermore, as the district court noted, an unsworn statement of a former prison official that Mr. Parker used to support his argument actually indicated that the prison staff had taken meaningful steps to rectify the access problem. Mr. Parker’s equitable-tolling argument also is undermined by the fact that he managed to file two applications for post-conviction relief during the periods when he allegedly lacked access to legal materials and assistance. In any event, the periods Mr. Parker has identified for equitable tolling (at most) amount to only a little more than six months; they could not possibly excuse his almost eight-year delay in filing his habeas petition. Therefore, like the district court, we conclude that Mr. Parker’s habeas petition was untimely and time-barred. Moreover, because Mr. Parker has failed to demonstrate the existence of “a reasoned, nonfrivolous argument on the law and the facts in support of the issues raised on appeal,” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812-13 (10th Cir. 1997), we deny his request to proceed IFP. Accordingly, we DENY Mr. Parker’s IFP motion and his COA application, and we DISMISS this appeal. This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . Because Mr. Parker is proceeding pro se, we review his pleadings and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21,"
},
{
"docid": "2292257",
"title": "",
"text": "before he eventually pled guilty. The district court sustained the government’s objection, ruling that Howard’s intended use of the testimony improperly punished Bautista-Benitez for exercising his constitutional right to challenge the legality of the evidence against him. Howard argues on appeal that this reasoning is “misplaced.” The government asserts in its brief that “[i]t would be generous to characterize evidence about whether a witness’s attorney filed a motion in the witness’s case as even marginally relevant to the witness’s credibility. It would certainly have been confusing to the jury.” We agree. Howard’s question was far more likely to confuse the issues than to constitute an identifiable attack on Bautista-Benitez’s credibility. See Fed.R.Evid. 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of ... confusion of the issues.... ”). Moreover, Howard’s counsel had already shown that Bautista-Benitez did not initially accept responsibility for his actions by eliciting testimony from him that he lied to the police about having drugs in the Passat when he was first stopped on Interstate 75. The district court therefore did not abuse its discretion when it sustained the government’s objection to the question put to Bautista-Benitez, even though the reason given in support of the court’s ruling was indeed “misplaced.” See Dixon v. Clem, 492 F.3d 665, 673 (6th Cir.2007) (explaining that this court “may affirm on any grounds supported by the record even if different from the reasons of the district court” (citation omitted)). D. Testimony of Agent Rolfson Howard next argues that the district court abused its discretion by permitting the government to question Agent Rolfson about his 2003 encounter with Howard on the Carlisle Road property. According to Howard, this testimony should have been excluded under Rule 403 of the Federal Rules of Evidence. Rule 403 provides in part that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” This court has explained that “[u]nfair prejudice does not mean the damage to a defendant’s case that results from the legitimate probative force of the evidence; rather"
},
{
"docid": "16824118",
"title": "",
"text": "local rule. See E.D. Okla. LCvR 7.1(o). The court did not abuse its discretion in denying the motion to amend for failure to comply with local rules. See Lambertsen v. Utah Dep’t of Corr., 79 F.3d 1024, 1029-30 (10th Cir.1996). We AFFIRM the grant of Defendant Williams’s motion to dismiss, AFFIRM the denial of Plaintiffs motion to amend, and REVERSE the district court’s grant of the motion to dismiss by Defendants Orman, Workman, and Morton. We GRANT appellant’s motion to proceed without prepayment of fees and remind appellant that he is obligated to continue to make partial payments until the filing fee is paid in full. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . Randall Workman, the current warden of OSP, has been automatically substituted for Mr. Sirmons as the correct party under Federal Rule of Civil Procedure 25(d). . “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). If the district court “can reasonably read the pleadings to state a valid claim,” the court should excuse such deficiencies as “the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Id. \"In addition, pro se litigants are to be given reasonable opportunity to remedy the defects in their pleadings.” Id. at 1110 n. 3. Nonetheless, the district court need not “assume the role of advocate for the pro se litigant” nor relieve the pro se plaintiff of his basic obligation to provide sufficient facts on which to base a claim. Id. atlllO. . Allhough Mr. Barrett’s prison grievances focused on violations of prison regulations and not constitutional claims, Defendants have not asserted the affirmative defense of non-exhaustion. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct."
},
{
"docid": "1459258",
"title": "",
"text": "denied the defendants’ motion to suppress their statements. Mr. Chaparro-Alcantara and Mr. Romero-Bautista had sought to have those statements suppressed because Agent Merchant had not informed them of their rights under the Vienna Convention. Mr. Chaparro-Alcantara then entered a conditional guilty plea. On March 19, the district court held a hearing to reconsider Mr. Romero-Bautis-ta’s motion to dismiss the indictment. At that hearing, the Government conceded that, at the time of the February 10 hearing, Hernandez had not been available to testify, even though Agent Merchant had testified then that she was available. Agent Merchant then testified at the March 19 hearing and stated that his testimony at the February 10 hearing had been accurate to the best of his knowledge. He also testified that he had learned on March 2 that Hernandez had been returned to Mexico in November. After the conclusion of Agent Merchant’s testimony, the district court acknowledged that Hernandez, who was now missing, was probably the best witness for Mr. Romero-Bautista. The district court refused, however, to dismiss the indictment. Instead, the district court allowed the case to proceed, but it ruled that it would allow Stanford to testify at trial about the substance of her conversations with Hernandez. It acknowledged that such testimony normally would be hearsay. Rather than proceed to trial, Mr. Romero-Bautista entered a conditional guilty plea. II DISCUSSION A. Rights Under the- Vienna Convention Mr. Chaparro-Alcantara and Mr. Romero-Bautista seek the suppression of statements made after their arrests. They concede that they were informed of their Miranda rights, but argue that, because they were not informed of their rights under the Vienna Convention, the statements should not have been admitted. The text of Article 36(l)(b) reads, in full: 1. With a view to facilitating the exercise of consular functions relating to nationals of the sending Stated:[ ] (b) If he so requests, the competent authorities of the receiving state shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that state is arrested or committed to prison or to custody pending trial or"
},
{
"docid": "6390623",
"title": "",
"text": "will entertain an appeal. Fed. R. App. P. 3(e).. An exception exists for indigent litigants. 28 U.S.C. § 1915(a)(1) (2012). This exception applies because Mr. Dawson is indigent, preventing him from prepaying the filing fee. As a result, we grant relief from the prepayment obligation. IV, Dismissal of the Due Process and Equal Protection Claims The district court concluded that the statutory limitations on relief did not violate Mr. Dawson’s right to due process or equal protection. Accordingly, the district court dismissed the complaint for failure to state a valid claim. We review this dismissal de novo. Janke v. Price, 43 F.3d 1390, 1391 (10th Cir. 1994). In conducting de novo review, we accept as true all of Mr. Dawson’s well-pleaded factual allegations and view them in the light most favorable to Mr. Dawson. See Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 2009), The resulting question is whether the complaint contains facts stating a plausible claim for relief. Id. The district court’s explanation for the dismissal .is thorough and persuasive. As the district court explained, Colorado may set rational limits on its newly authorized judicial remedy for the loss or destruction of biological evidence. These statutory limits precluded Mr. Dawson from obtaining a judicial remedy because he did not claim actual innocence in his state-court criminal proceedings, and his blood and urine samples did not involve DNA evidence. As the distinct court explained, Mr. Dawson’s inability to obtain a judicial remedy did not result in a denial of due process or equal protection. Accordingly, we affirm the dismissal. The parties have not requested oral argument, and it would not materially aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based on the briefs. Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). . Mr. Dawson also argues that the district court erred by (1) recharacterizing his claims as challenges to the"
},
{
"docid": "1459257",
"title": "",
"text": "testified that, according to the witnesses, Mr. Romero-Bautista had not asked for money in payment for their transportation, but had asked for money only for food or drinks. Stanford spoke in more detail about the Government’s interview with Hernandez. She testified that, in the interview with witness Hernandez, Hernandez had stated that INS agents pressured her to say that Mr. Romero-Bautista was a coyote. Stanford added that other witnesses stated that they had been pressured in the same way. Also at the February 10 hearing, Agent Merchant testified that Hernandez had not been deported and stated further that Ruiz-Ruiz was still available to testify. The district court then refused to dismiss the indictment, on the ground that Hernandez and Ruiz-Ruiz, both potentially material witnesses, were in the United States and could be brought to court to testify. Contrary to the Government’s representation, however, neither Ruiz-Ruiz nor Hernandez was available at that time. Ruiz-Ruiz did become available later when the Government captured him after he illegally re-entered the United States. On March 5, the district court denied the defendants’ motion to suppress their statements. Mr. Chaparro-Alcantara and Mr. Romero-Bautista had sought to have those statements suppressed because Agent Merchant had not informed them of their rights under the Vienna Convention. Mr. Chaparro-Alcantara then entered a conditional guilty plea. On March 19, the district court held a hearing to reconsider Mr. Romero-Bautis-ta’s motion to dismiss the indictment. At that hearing, the Government conceded that, at the time of the February 10 hearing, Hernandez had not been available to testify, even though Agent Merchant had testified then that she was available. Agent Merchant then testified at the March 19 hearing and stated that his testimony at the February 10 hearing had been accurate to the best of his knowledge. He also testified that he had learned on March 2 that Hernandez had been returned to Mexico in November. After the conclusion of Agent Merchant’s testimony, the district court acknowledged that Hernandez, who was now missing, was probably the best witness for Mr. Romero-Bautista. The district court refused, however, to dismiss the indictment. Instead,"
},
{
"docid": "1459256",
"title": "",
"text": "as potential witnesses. They therefore were released from the court’s custody with the expectation that the INS would then deport them. Among those released were Armando Ruiz-Ruiz and Jacoba Hernandez. Both Ruiz-Ruiz and Hernandez were returned to Mexico on November 4. Mr. Romero-Bautista later moved to dismiss the indictment against him on the ground that the passengers were material witnesses who had been deported improperly. The district court held a hearing on that motion on February 10, 1999. At that hearing, Mr. Romero-Bautista offered the testimony of Sofia Stanford, his court-appointed translator. Stanford stated that the detained witnesses had said, in prison interviews, that Mr. Romero-Bautista was not involved in transporting the aliens. Stanford testified that each of the -witnesses had been asked whether Mr. Romero-Bautista was transporting illegal aliens; she testified that each of the witnesses had stated that Mr. Romero-Bautista was not a “coyote,” or someone who brought illegal aliens into the United States for profit. Further, she testified, they all stated that Mr. Romero-Bautista had not been driving the van. She also testified that, according to the witnesses, Mr. Romero-Bautista had not asked for money in payment for their transportation, but had asked for money only for food or drinks. Stanford spoke in more detail about the Government’s interview with Hernandez. She testified that, in the interview with witness Hernandez, Hernandez had stated that INS agents pressured her to say that Mr. Romero-Bautista was a coyote. Stanford added that other witnesses stated that they had been pressured in the same way. Also at the February 10 hearing, Agent Merchant testified that Hernandez had not been deported and stated further that Ruiz-Ruiz was still available to testify. The district court then refused to dismiss the indictment, on the ground that Hernandez and Ruiz-Ruiz, both potentially material witnesses, were in the United States and could be brought to court to testify. Contrary to the Government’s representation, however, neither Ruiz-Ruiz nor Hernandez was available at that time. Ruiz-Ruiz did become available later when the Government captured him after he illegally re-entered the United States. On March 5, the district court"
},
{
"docid": "10747321",
"title": "",
"text": "that Mr. Hood was married to someone other than Ms. Intarakamhang from February 2001 to November 2010. Appx. at 820. Under the laws of Colorado, Mr. Hood could not be legally married to Ms. Intarakamhang while married to another woman. Colo. Rev.Stat. § 14-2-110(l)(a). Colorado’s prohibition on plural marriage includes common law marriages. Colo.Rev.Stat. § 14-2-109.4(l)(b). Mr. Hood therefore could not “become entitled to a benefit” under the Plan, and has no beneficiary standing under ERISA. 29 U.S.C. § 1002(8). III. CONCLUSION For the foregoing reasons, we affirm the district court’s order granting Beverage’s motion for judgment on the pleadings based on DHHA’s lack of standing to sue under ERISA § 502(a)(1)(B). In accord with our order dated September 19, 2013, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . DHHA extensively referenced and relied upon the Plan (which was originally attached to Beverage's first motion to dismiss) in its second amended complaint. Although the district court generally may not look beyond the pleadings when deciding a motion to dismiss, \"the district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents’ authenticity.” Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1217 (10th Cir.2007) (quotations omitted). Here, the Plan is central to DHHA’s standing argument, and the parties do not dispute its authenticity. The district court therefore properly considered it. . Even if we were to consider the Form, Ms. Intarakamhang and Mr. Hood signed the Form, certifying that \"[njeither of [them were] married to or legally separated from anyone else.” Appx. at 1033. This undercuts DHHA’s argument because, at that time, Mr. Hood was"
},
{
"docid": "3133573",
"title": "",
"text": "Ms. Dyer cites the same evidence she cited as pretext to argue there was not just cause to terminate her, namely, that she was not given an opportunity to remediate her misconduct, that other employees were given that opportunity, and that she did not admit to pre-arrang-ing assignments thirty times or giving her husband preferential treatment. Again, Ms. Dyer only disputes the number of times she improperly pre-arranged assignments, but it is undisputed she improperly pre-arranged some number of teaching assignments for her husband. She disputes the seriousness of the complaints about his performance but it is undisputed she failed to take any action whatsoever on numerous complaints about his conduct which were serious enough to the reporting schools to request Mr. Dyer never again be assigned to their schools. Ms. Dyer’s disputes do not create a genuine issue of material fact as to whether KCUSD had just cause to terminate her employment, because it is undisputed that she abused her authority and breached her position of trust. The district court did not err in granting summary judgment in favor of KCUSD on Ms. Dyer’s breach-of-implied contract claim. The judgment of the district court is affirmed. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . Ms. Dyer’s complaint also named other defendants and asserted additional claims, but she does not appeal the district court’s dismissal of those claims or defendants. . KCUSD admits that it has an unwritten progressive discipline policy. Ms. Dyer’s only evidence of a written policy is three incom-píete, apparently unrelated, pages containing snippets of a progressive policy."
},
{
"docid": "2292256",
"title": "",
"text": "Supreme Court has explained that “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). We review a district court’s decision to limit the scope of cross-examination under the abuse-of-discretion standard. United States v. Kone, 307 F.3d 430, 436 (6th Cir.2002). Howard’s counsel attempted to cross-examine Bautista-Benitez about a motion to suppress that Bautista-Benitez had filed prior to entering a plea of guilty with regard to the transportation of the cocaine discovered in the Passat. Specifically, he asked: “Mr. Bautista, did you file a motion to try to exclude the evidence in your case?” The government objected to this question on relevance grounds. Howard’s counsel responded that he was trying to attack Bautista-Benitez’s credibility by showing that Bautista-Benitez had sought to avoid responsibility for his actions before he eventually pled guilty. The district court sustained the government’s objection, ruling that Howard’s intended use of the testimony improperly punished Bautista-Benitez for exercising his constitutional right to challenge the legality of the evidence against him. Howard argues on appeal that this reasoning is “misplaced.” The government asserts in its brief that “[i]t would be generous to characterize evidence about whether a witness’s attorney filed a motion in the witness’s case as even marginally relevant to the witness’s credibility. It would certainly have been confusing to the jury.” We agree. Howard’s question was far more likely to confuse the issues than to constitute an identifiable attack on Bautista-Benitez’s credibility. See Fed.R.Evid. 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of ... confusion of the issues.... ”). Moreover, Howard’s counsel had already shown that Bautista-Benitez did not initially accept responsibility for his actions by eliciting testimony from him that he lied to the police about having drugs in the Passat when he was first stopped on"
},
{
"docid": "16069805",
"title": "",
"text": "Ms. Espinoza’s potential testimony, he had no opportunity to effectively cross-examine her. The government only learned of her potential testimony a week before trial, so nothing suggests the government intentionally impaired Mr. Cordova’s ability to cross-examine her. The district court offered to entertain a motion for a continuance if Mr. Cordova was not prepared to meet the evidence, but Mr. Cordova declined to make such a motion. Therefore, Mr. Cor-dova indeed had a fair opportunity to prepare. The court would have granted a continuance had he asked for one. Finally, Mr. Cordova’s attorney makes several claims the court unconstitutionally limited cross-examination. Aplt’s Br. at 27-28. Viewing the transcript, this does not appear to be the case. Rec. vol. V., doc. 112, at 19-31. Specifically, Mr. Cordova claims that the “trial court severely limited any questioning of Ms. Espinoza’s drug use/abuse;” that the court limited questions concerning leniency she would obtain for testifying; and that the trial court limited Mr. Cordova to asking questions about open eases against Ms. Espinoza. Aplt’s Br. at 28. We are not persuaded that the court’s limitations were unconstitutional. The district court allowed inquiry into her drug use. Mr. Cordova was able to question her about drug cases, a shoplifting charge, and failures to appear in court. Id. at 28-30. Additionally, Mr. Cordova asked Ms. Espinoza about any leniency she expected. Id. The district court did not violate the Sixth Amendment by limiting cross-examination to open criminal matters. Under the circumstances, Mr. Cordova had a sufficient opportunity to cross-examine Ms. Espinoza. III. CONCLUSION Accordingly, we AFFIRM. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1."
}
] |
122671 | carrying out of a gratuitous undertaking could constitute a violation of plaintiff’s eighth amendment rights against cruel and unusual punishment. Nevertheless, the present record contains only bare allegations and until at least the actual status of the defendant fire companies is developed, the complaint should not be dismissed as to the fire companies. If the fire companies were undertaking a service required to be performed by the state, thus possibly establishing “state” action, there could conceivably be a civil rights cause of action against them. The fire companies also contend they are so closely allied with, controlled by and carrying out municipal governmental functions as to come within the exemption afforded municipalities from civil rights damage actions under the doctrine of REDACTED The complaint, however, alleges that the fire companies are nonprofit corporations. Private corporations have been held liable in damages under the civil rights acts. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L. Ed.2d 142 (1970). Of course, it must be established that the violation by the private corporation was “under color of state law” under Section 1983 or by reason of a conspiracy under Section 1985. There is, however, no logical reason that I can perceive why a private corporation should not be as fully liable as an individual under the Civil Rights Act. In general legal theory, a corporation is a separate legal entity subject to the same | [
{
"docid": "22665531",
"title": "",
"text": "and town organizations, the mere instrumentality for the administration of state law.” The question of constitutional power of Congress to impose civil liability on municipalities was vigorously debated with powerful arguments advanced in the affirmative. Much reliance is placed on the Act of February 25,1871, 16 Stat. 431, entitled “An Act prescribing the Form of the enacting and resolving Clauses of Acts and Resolutions of Congress, and Rules for the Construction thereof.” Section 2 of this Act provides that “the word ‘person’ may extend and be applied to bodies politic and corporate.” It should be noted, however, that this definition is merely an allowable, not a mandatory, one. It is said that doubts should be resolved in favor of municipal liability because private remedies against officers for illegal searches and seizures are conspicuously ineffective, and because municipal liability will not only afford plaintiffs responsible defendants but cause those defendants to eradicate abuses that exist at the police level. We do not reach those policy considerations. Nor do we reach the constitutional question whether Congress has the power to make municipalities liable for acts of its officers that violate the civil rights of individuals. The response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the Act of April 20, 1871, was so antagonistic that we cannot believe that the word \"person” was used in this particular Act to include them. Accordingly we hold that the motion to dismiss the complaint against the City of Chicago was properly granted. But since the complaint should not have been dismissed against the officials the judgment must be and is Reversed. This section provides in material part: “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: “(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons"
}
] | [
{
"docid": "10912740",
"title": "",
"text": "why a private corporation should not be as fully liable as an individual under the Civil Rights Act. In general legal theory, a corporation is a separate legal entity subject to the same liabilities as an individual person. Of course, in proving a Section 1983 cause of action against a private corporation such as a fire company, plaintiff has to walk a tightrope whereby fie proves action “under color of state- law” without proving the corporation to be a municipal corporation. At this stage of the proceedings, however, the exact status of the fire companies has not been conclusively established by the record. Dismissal as to the fire company defendants at this time would, therefore, be improper. There is one final problem requiring some mention. Plaintiff originally sought only monetary damages against prison officials, as has been noted. Counsel was appointed for him under Local Rule 9% which was adopted to assist indigent prisoners. Since plaintiff is no longer a prisoner, the representation by the appointed attorneys may not be in literal compliance with the rule, but I think that the appointment should continue for this litigation. However, Local Rule 9yz is very express that appointments thereunder are restricted to “any civil rights matter” and “any habeas corpus matter.” A negligence or other tort claim by an indigent prisoners is not covered under Rule 9% for a very good reason. Any person not in jail having a colorable or apparently meritorious negligence cause of action has no difficulty in hiring a private attorney to process the case on a contingent fee basis. I do not think this court should permit the utilization of what is essentially charitable legal services to displace the private practice of law in the field of negligence litigation. Consequently, if plaintiff intends to proceed on any theories of negligence as a separate cause of action (other than as a civil rights action based on culpable negligence), private counsel will have to be obtained. There is, of course, nothing to prevent the filing of any claimed negligence causes of action in state courts, and the statute of"
},
{
"docid": "2461900",
"title": "",
"text": "federal constitutional rights against state and local governments and their agents. Monroe also held, however, that a local government was not a “person” that could be sued under § 1983. 365 U.S. at 187-92, 81 S.Ct. 473. Most defendants under § 1983 are public employees, but private companies and their employees can also act under color of state law and thus can be sued under § 1983. E.g., Wyatt v. Cole, 504 U.S. 158, 161-62, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992); Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). In a case involving a private company, the Supreme Court took for granted that the corporate defendant would be liable under § 1983 for a constitutional tort committed by its employee. In Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), a woman sued both a police officer and a private corporation under § 1983 for race discrimination. The plaintiff was a white teacher who had entered a restaurant in Mississippi with several African American students. She had been refused service and was then arrested when she left the restaurant. The Supreme Court reversed summary judgment for the restaurant and explained that the plaintiff could recover from the restaurant if she could prove “that a Kress employee, in the course of employment, and a Hattiesburg policeman somehow reached an understanding to deny Miss Adickes service in the Kress store, or to cause her subsequent arrest because she was a white person in the company of Negroes.” 398 U.S. at 152, 90 S.Ct. 1598. In other words, the Court indicated that a private corporation could be held liable under § 1983 on a theory of respondeat superior liability. Interestingly, Adickes was decided at a time when a municipal government could not be held liable at all under § 1983. For present purposes, the next pivotal decision was Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Monell first overruled Monroe in part and held that a local government"
},
{
"docid": "10328435",
"title": "",
"text": "PER CURIAM: Jon-Karl Baldwin brought a civil rights action against the Appalachian Power Company alleging that he was deprived of his property without due process of law by the power company’s erection of certain power line poles on his property. Baldwin sought compensatory and punitive damages as well as injunctive relief. The district court dismissed the complaint sua sponte, finding that Baldwin had failed to state a claim under 42 U.S.C. § 1983. It is from this judgment that Baldwin appeals. Taking as true the allegation stated in Baldwin’s complaint, as we must, it appears that the Appalachian Power Company, proceeding under W.Va. Code § 54-2-15, secured a right of way through Baldwin’s property for the erection of electric power lines and poles. Baldwin claims that a hearing was not granted prior to the power company’s taking of the land in question as ' required by § 54-2-15. Where a complaint is brought under 42 U.S.C. § 1983, two elements must be established before there can be recovery. First, the plaintiff must demonstrate that the defendant has deprived him of a right secured by the “Constitution and laws” of the United States. Second, the plaintiff must demonstrate that the defendant deprived him of this constitutional right under color of state law. Adickes v. S. H. Kress Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Under West Virginia law, the power of eminent domain may be conferred upon private corporations for the purpose of constructing works for the public utility. Specifically, public service corporations may take private land for the construction and maintenance of electric light lines. W.Va. Code § 54-1-2. By exercising the delegated power of eminent domain, a public service corporation acts as an agent of the state, Fork Ridge Baptist Cemetery Ass’n v. Redd, 33 W.Va. 262, 10 S.E. 405 (1889). Thus, we find that the power company, by availing itself of a state-granted right of entry onto Baldwin’s property, acted under color of state law. See Lucas v. Wisconsin Electric Power Co., 466 F.2d 638 (7th Cir. 1972), cert. denied, 409 U.S. 1114, 93"
},
{
"docid": "10912737",
"title": "",
"text": "entirely proper, I do not think this to be such a case. The gravamen of the civil rights action is cruel and unusual punishment. The legal tests are vastly different from those of negligence, and it would seem to me that a jury might have serious difficulty in rendering a consistent verdict on the separate theories. For all of the foregoing reasons, I do not believe the ends of justice will be served by permitting the proposed second amended complaint to be filed. However, this does not preclude the plaintiff from seeking to file a further amended complaint that will be consistent with this decision. This first amended complaint sought to join two township fire companies alleged to be nonprofit corporations. Plaintiff cites no authority in the briefs or pleadings thus far filed to support the novel contention that a nonprofit fire company would or could have any duty to inspect and prevent fire hazards at a state prison. The only possible Section 1983 civil rights action could be under a theory of cruel and unusual punishment arising out of the negligence of the fire companies, which negligence the complaint again charges to be “reckless, wanton and wilful.” In Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972), the Third Circuit expressly left open and unanswered the question of whether there could ever be a valid cruel and unusual punishment civil rights action based on culpable negligence. Id. at 279, n. 11. In all likelihood, the only duty that can be shown to be imposed on the defendant fire companies in the context of this case is that of one who gratuitously undertakes to perform a service for another. Sections 323 and 324 of the Restatement of Torts, 2nd, impose liability for negligently carrying out gratuitous services under certain conditions. I consider it extremely doubtful that the negligent carrying out of a gratuitous undertaking could constitute a violation of plaintiff’s eighth amendment rights against cruel and unusual punishment. Nevertheless, the present record contains only bare allegations and until at least the actual status of the defendant fire companies is developed,"
},
{
"docid": "10912738",
"title": "",
"text": "unusual punishment arising out of the negligence of the fire companies, which negligence the complaint again charges to be “reckless, wanton and wilful.” In Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972), the Third Circuit expressly left open and unanswered the question of whether there could ever be a valid cruel and unusual punishment civil rights action based on culpable negligence. Id. at 279, n. 11. In all likelihood, the only duty that can be shown to be imposed on the defendant fire companies in the context of this case is that of one who gratuitously undertakes to perform a service for another. Sections 323 and 324 of the Restatement of Torts, 2nd, impose liability for negligently carrying out gratuitous services under certain conditions. I consider it extremely doubtful that the negligent carrying out of a gratuitous undertaking could constitute a violation of plaintiff’s eighth amendment rights against cruel and unusual punishment. Nevertheless, the present record contains only bare allegations and until at least the actual status of the defendant fire companies is developed, the complaint should not be dismissed as to the fire companies. If the fire companies were undertaking a service required to be performed by the state, thus possibly establishing “state” action, there could conceivably be a civil rights cause of action against them. The fire companies also contend they are so closely allied with, controlled by and carrying out municipal governmental functions as to come within the exemption afforded municipalities from civil rights damage actions under the doctrine of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The complaint, however, alleges that the fire companies are nonprofit corporations. Private corporations have been held liable in damages under the civil rights acts. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L. Ed.2d 142 (1970). Of course, it must be established that the violation by the private corporation was “under color of state law” under Section 1983 or by reason of a conspiracy under Section 1985. There is, however, no logical reason that I can perceive"
},
{
"docid": "22571387",
"title": "",
"text": "this appeal, we must decide whether the record conclusively establishes on the basis of uncontro-verted facts that (1) the Fire Company is not a state actor subject to suit under 42 U.S.C. § 1983 and (2) Haavistola and the Fire Company did not share an employee/employer relationship governed by Title VII. A 42 U.S.C. § 1983 provides, in relevant part, that: “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States ... 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.” To establish a claim under section 1983, a plaintiff must prove two elements: 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 col- or of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970) (quoting 42 U.S.C. § 1983). In cases construing section 1983, “under color” of law has been treated consistently as equivalent to the “state action” requirement under the Fourteenth Amendment. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769, 73 L.Ed.2d 418 (1982). In this case the Fire Company asserted and the district court agreed that the Fire Company did not act with the requisite state action to establish the second element needed to make out a successful claim under section 1983. Haavistola v. Community Fire Co., 812 F.Supp. 1379, 1390-1400 (D.Md.1993). The issue for our review is whether the Fire Company, a private corporation organized under the laws of Maryland, funded to some extent through state and local resources, and regulated extensively by the State of Maryland, acted under color"
},
{
"docid": "14378902",
"title": "",
"text": "154 F.3d 841, 844-45 (8th Cir.1998) (holding that, although private employer told plaintiff employee “[t]he City says I have to fire you,” and the “City will revoke [my] license and put [me] out of business unless [I] fire [you],” employee “offered no evidence” that private employer “willingly agreed” with city manager to retaliate against her for testifying in court proceeding, and thus dismissing claims under 42 U.S.C. § 1985 and state civil conspiracy law). Under § 1983, a plaintiff must establish not only that a private actor caused a deprivation of constitutional rights, but that the private actor willfully participated with state officials and reached a mutual understanding concerning the unlawful objective of a conspiracy. See Adickes, 398 U.S. at 152, 90 S.Ct. 1598. In Adickes, for example, the Supreme Court considered whether Kress & Company was entitled to summary judgment on the claim that it had conspired with city police to violate the plaintiffs equal protection rights when Kress refused service at a food counter. Kress argued that summary judgment was warranted because evidence of its store manager’s non-discriminatory ' motive for refusing service was undisputed. The store manager claimed that Miss Adickes was refused food service “only because he was fearful of a riot in the store by customers angered at seeing a ‘mixed group’ of whites and blacks eating together.” 398 U.S. at 154, 90 S.Ct. 1598. The Court rejected that argument, noting that the plaintiff presented evidence “specifically disputing the manager’s assertion that the situation at the store at the time of the refusal was ‘explosive,’ thus creating an issue of fact as to what his motives might have been in ordering the refusal of service.” Id. at 157, 90 S.Ct. 1598 (emphasis added). The Court explained that the store manager’s intent and motive were important to the question whether the store was liable under § 1983: “[Adickes] will be entitled to relief under § 1983 if she can prove that a Kress employee, in the course of employment, and a Hattiesburg policeman somehow reached an understanding to deny Miss Adickes service in the Kress store,"
},
{
"docid": "22571388",
"title": "",
"text": "that the defendant deprived him of this constitutional right “under col- or of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970) (quoting 42 U.S.C. § 1983). In cases construing section 1983, “under color” of law has been treated consistently as equivalent to the “state action” requirement under the Fourteenth Amendment. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769, 73 L.Ed.2d 418 (1982). In this case the Fire Company asserted and the district court agreed that the Fire Company did not act with the requisite state action to establish the second element needed to make out a successful claim under section 1983. Haavistola v. Community Fire Co., 812 F.Supp. 1379, 1390-1400 (D.Md.1993). The issue for our review is whether the Fire Company, a private corporation organized under the laws of Maryland, funded to some extent through state and local resources, and regulated extensively by the State of Maryland, acted under color of state law when it permanently suspended Haavis-tola from its membership. “Concededly, the defendant [is a] private part[y] and, therefore, the ‘question is whether [its] conduct has sufficiently received the imprimatur of the State so as to make it “state” action....'\" Alcena v. Raine, 692 F.Supp. 261, 266 (S.D.N.Y.1988) (quoting Blum v. Yaretsky, 457 U.S. 991, 1003, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534 (1982)). The Supreme Court has identified three situations in which particular conduct by a private entity constitutes “state action.” The first situation is the symbiotic relationship and occurs when there is a sufficiently close nexus between the state and the challenged action of the regulated entity such that those actions may be fairly treated as those of the state; the inquiry is whether the state is responsible for the specific conduct of which the plaintiff complains. Alcena, 692 F.Supp. at 267 (citing Blum, 457 U.S. at 1004-05, 102 S.Ct. at 2785-86). The second situation involves extensive governmental regulation of a private entity: “a state may be held responsible for private conduct"
},
{
"docid": "11804868",
"title": "",
"text": "dramatization and arres-tee humiliation. The procedure is excessively harsh on the arrestee, and furthers the goal of information dissemination no more effectively than other more conventional and less intrusive methods that have been permitted by the courts. . Because we find that the perp walk violated plaintiff's rights as secured by the Fourth Amendment and that plaintiff is entitled to damages, we need not decide whether this procedure also violated plaintiff's Fourteenth Amendment due process rights. We also note that plaintiff’s memoranda of law concentrate principally on the alleged Fourth Amendment violation, although defendants have attempted to portray the case as solely a Fourteenth Amendment issue. . We do not here address whether Fox 5 News or the Fox Broadcasting Company (See Plaintiff’s Exhibit 6.) could also be held liable for the constitutional violation discussed herein. \"It is well established that private persons may act 'under color’ of state law, and hence be held liable under section 1983 when they act in conspiracy with state officials.” Archer Gardens, Ltd. v. Brooklyn Center Development Corporation, 468 F.Supp. 609, 613 (S.D.N.Y.1979) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). A private actor is understood to have acted under color of law for the purposes of § 1983 if \"he has conspired with state officials, that is, that he 'somehow reached an understanding’ with state officials, or was a 'willing participant in joint activity with the State or its agents.’ ” D'Agostino, Sr. v. New York State Liquor Authority, 913 F.Supp. 757 (W.D.N.Y.1996) (citing Adickes, 398 U.S. at 152, 90 S.Ct. 1598). See also Berger v. Hanlon, 129 F.3d 505, 514 (9th Cir.1997) (deciding whether CNN should be liable for participating in an alleged Fourth Amendment violation by videotaping a jointly-planned search of the plaintiffs’ property), cert. granted, U.S. —;—, 119 S.Ct. 443, 142 L.Ed.2d 398 (1998). We note that such a claim would not be farfetched in this case given that Fox 5 News appears to have encouraged, and participated in, the perp walk conducted by Det. Charles. Additionally, as in Berger,"
},
{
"docid": "16302377",
"title": "",
"text": "part of the corporate defendant. The cases relied on by the defendant are factually distinguishable from the instant case. In both Draeger v. Grand Central, Inc., 504 F.2d 142 (10th Cir. 1974), and Weiss v. J. C. Penney Company, Inc., 414 F.Supp. 52 (D.C.1976), reliance was placed solely on the principal-agent relationship to establish liability on the part of the corporate defendant. There were no allegations of direct involvement as in this case. The Court is aware that a corporation can act only through its employees and that the principles of agency must be utilized to some extent to find liability on the corporation. Under the facts as stated in the complaint, the Court feels that the principles of agency can be utilized to establish liability under § 1983. The Court would note the similarity between this case and Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), in which a corporate defendant was held liable under § 1983. The Court, in Adickes, found that “petitioner will have made out a violation of her Fourteenth Amendment rights and will be entitled to relief under § 1983 if she can prove that a Kress employee, in the course of employment, and a Hattiesburg policeman somehow reached an understanding to deny Miss Adickes service in the Kress store, or to cause her subsequent arrest because she was a white person in the company of Negroes.” Id. at 152, 90 S.Ct. at 1605. For the reasons stated above, the defendant’s motion to dismiss the federal cause of action is denied. Since the Court may exercise pendent jurisdiction over the state claims, the defendant’s motion to dismiss these claims for lack of jurisdiction must also be denied. So ordered this 25th day of August, 1977 at Milwaukee, Wisconsin."
},
{
"docid": "10912739",
"title": "",
"text": "the complaint should not be dismissed as to the fire companies. If the fire companies were undertaking a service required to be performed by the state, thus possibly establishing “state” action, there could conceivably be a civil rights cause of action against them. The fire companies also contend they are so closely allied with, controlled by and carrying out municipal governmental functions as to come within the exemption afforded municipalities from civil rights damage actions under the doctrine of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The complaint, however, alleges that the fire companies are nonprofit corporations. Private corporations have been held liable in damages under the civil rights acts. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L. Ed.2d 142 (1970). Of course, it must be established that the violation by the private corporation was “under color of state law” under Section 1983 or by reason of a conspiracy under Section 1985. There is, however, no logical reason that I can perceive why a private corporation should not be as fully liable as an individual under the Civil Rights Act. In general legal theory, a corporation is a separate legal entity subject to the same liabilities as an individual person. Of course, in proving a Section 1983 cause of action against a private corporation such as a fire company, plaintiff has to walk a tightrope whereby fie proves action “under color of state- law” without proving the corporation to be a municipal corporation. At this stage of the proceedings, however, the exact status of the fire companies has not been conclusively established by the record. Dismissal as to the fire company defendants at this time would, therefore, be improper. There is one final problem requiring some mention. Plaintiff originally sought only monetary damages against prison officials, as has been noted. Counsel was appointed for him under Local Rule 9% which was adopted to assist indigent prisoners. Since plaintiff is no longer a prisoner, the representation by the appointed attorneys may not be in literal compliance with the"
},
{
"docid": "5589352",
"title": "",
"text": "against Sears, Roebuck & Company in the § 1983 claim is that it is responsible under a theory of respondeat superior. Such a claim is not cognizable under § 1983. Section 1983 creates a cause of action against “every person, who under color of any statute, ordinance, regulation, custom, or usage” subjects any person to deprivation of immunities secured by the Constitution or federal laws. 42 U.S.C. § 1983 (1988). Although § 1983 secures most constitutional rights from infringement by governments, not private parties, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 95 S.Ct. 449, 452, 42 L.Ed.2d 477 (1974), where a private party acts under color of state law, it can be held liable under § 1983. See e.g., Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980) (private individual deemed to act under color of state law if he or she is “willful participant in joint action with State or its agents”); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (proof of conspiracy between restaurant and police would establish that the restaurant acted under color of law and thus the private entity could be held liable under § 1983). Here, although Sears is a private corporation, we assume without deciding that it “acted under color of state law” by virtue of North Dakota Century Code 51-21-03. However, a corporation acting under color of state law will only be held liable under § 1983 for its own unconstitutional policies. Monell v. Department of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). The proper test is whether there is a policy, custom or action by those who represent official policy that inflicts injury actionable under § 1983. Id. at 694, 98 S.Ct. at 2037. Here, Sanders has not pled that Sears has a policy or custom of false arrests or malicious prosecution. Moreover, Sears “cannot be held liable under § 1983 on a respon-deat superior theory.” Id. at 691, 98 S.Ct. at 2036. The fact that Sears employed Geiger does not"
},
{
"docid": "22770400",
"title": "",
"text": "also alleged (under § 1983) that the defendants conspired to violate his constitutional rights. While substantive claims under § 1983 are normally brought only against state officials, “a § 1983 claim may be proved by showing that a person acting under color of state law ... collaborated or conspired with a private person ... to deprive the plaintiff of a constitutional right....” Fries v. Barnes, 618 F.2d 988, 990 (2d Cir.1980) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)); see also American Broadcasting Cos. v. Cuomo, 570 F.2d 1080, 1083 (2d Cir.1977) (“an ordinary citizen who conspires with a state agent to violate the civil rights of a plaintiff is equally liable_”). Thus, this claim appears to have been interposed in order to bring federal suit against the private party defendants: Stewart’s Ice Cream Co., Raymond Shuler and Andrea Nicollela. The district court dismissed this claim on the ground that a plaintiff alleging a § 1983 conspiracy claim must prove an actual violation of constitutional rights. In this we agree. Section 1983 is only a grant of a right of action; the substantive right giving rise to the action must come from another source. Therefore, although the pleading of a conspiracy will enable a plaintiff to bring suit against purely private individuals, the lawsuit will stand only insofar as the plaintiff can prove the sine qua non of a § 1983 action: the violation of a federal right. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970) (one of the necessary elements of a § 1983 action is “that the defendant has deprived [the plaintiff] of a right secured by the ‘Constitution and laws’ of the United States.”). The district court based its ruling on the conclusion that Singer could not prove essential elements of his claims of false arrest and malicious prosecution, and therefore could not prove an actual violation of his constitutional rights. As noted above, these claims primarily implicate Fourth Amendment rights; Singer, however, also pleaded a violation"
},
{
"docid": "10912736",
"title": "",
"text": "to violate the Constitutional rights of the plaintiff as set forth heretofore, and hereinafter. As to Dr. Gaffney, except for the conclusory allegation of conspiracy in paragraph 55, the only charge is that he “failed to prevent the plaintiff’s removal”, presumedly from the infirmary back to the smoke damaged cell. At best, the allegations against Dr. Gaffney appear to arise after plaintiff was rescued from the fire, and are founded solely on doctrines of negligence. If there is any valid claim against Dr. Gaffney, it would appear to be an entirely distinct and separate cause of action. The question of whether the various allegations and causes of action in both the amended complaint and the proposed second amended complaint should be permitted under the doctrine of pendent jurisdiction raises another difficult problem. Phillips v. Trello, supra, suggests that a district court should consider such a possibility. 502 F.2d at 1005. Although there may well be cases where maintaining pendent jurisdiction of a common-law negligence cause of action with that of a civil rights action is entirely proper, I do not think this to be such a case. The gravamen of the civil rights action is cruel and unusual punishment. The legal tests are vastly different from those of negligence, and it would seem to me that a jury might have serious difficulty in rendering a consistent verdict on the separate theories. For all of the foregoing reasons, I do not believe the ends of justice will be served by permitting the proposed second amended complaint to be filed. However, this does not preclude the plaintiff from seeking to file a further amended complaint that will be consistent with this decision. This first amended complaint sought to join two township fire companies alleged to be nonprofit corporations. Plaintiff cites no authority in the briefs or pleadings thus far filed to support the novel contention that a nonprofit fire company would or could have any duty to inspect and prevent fire hazards at a state prison. The only possible Section 1983 civil rights action could be under a theory of cruel and"
},
{
"docid": "15682853",
"title": "",
"text": "term “state” as it is used in the Restatement to be consistent with that term under § 1983 jurisprudence, i.e., “those who represent the state.” Accordingly, to make out his claim Beanal must allege that Freeport engaged in state action in violation of his rights under the international law of human rights. Corporations can represent the state. Both private individuals and private entities can be state actors and can be held liable under § 1983. Sims v. Jefferson Downs Racing Ass’n, 778 F.2d 1068, 1076 (5th Cir.1985). Section 1983 does not require that the defendant be an officer of the State. Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980). “Private persons jointly engaged with state officials in the challenged action, are acting under color of law for purposes of § 1983 purposes.” Id. at 28, 101 S.Ct. at 186, citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970). Section 1983 applies to all persons, including corporations. The Restatement does not address who can be sued for human rights violations. Comment b to Restatement section 702 provides: In general, a state is responsible for acts of officials or official bodies, national or local, even if the acts were not authorized by or known to the responsible national authorities, indeed even if expressly forbidden by law, decree or instruction. The violations of human rights cited in this section, however, are violations of customary international law only if practiced, encouraged, or condoned by the government of a state as official policy. Restatement § 702, comment b. Section 702 uses the term “state,” and the comments refer to “officials or official bodies.” This language does not preclude corporate liability. Indeed, the term “official bodies” could cover private entities, rather than individuals, which engage in official conduct. Carmichael contemplated such corporate liability for a private actor which conspired in, aided or abetted official torture. Carmichael, 835 F.2d at 113-114. Thus, the court finds that a corporation found to be a state actor can be held responsible for human"
},
{
"docid": "14378901",
"title": "",
"text": "to deprive a person of federal constitutional rights. We think it follows from Pendleton that both state officials and private actors may be liable under § 1983 for conspiring to retaliate against protected speech, if the evidence shows the requisite agreement to violate or disregard the law. In support of its argument that the Pickering balancing test should apply to this case, the Bank complains that if Dos-sett were to prevail, then “a private employer faced with potentially devastating loss of business could not take the only action that would save its business.” (Ap-pellee’s Br. at 34). We think this cataclysmic prediction misunderstands Dossett’s claim. The allegation is not merely that the Bank discharged Dossett because it exercised business judgment in the best interests of its shareholders, or that it succumbed to economic pressure from school officials who threatened to withdraw the school board’s significant bank account. If that were all the evidence showed, then it may well be insufficient to establish liability for a conspiracy under § 1983. Cf. Helvey v. City of Maplewood, 154 F.3d 841, 844-45 (8th Cir.1998) (holding that, although private employer told plaintiff employee “[t]he City says I have to fire you,” and the “City will revoke [my] license and put [me] out of business unless [I] fire [you],” employee “offered no evidence” that private employer “willingly agreed” with city manager to retaliate against her for testifying in court proceeding, and thus dismissing claims under 42 U.S.C. § 1985 and state civil conspiracy law). Under § 1983, a plaintiff must establish not only that a private actor caused a deprivation of constitutional rights, but that the private actor willfully participated with state officials and reached a mutual understanding concerning the unlawful objective of a conspiracy. See Adickes, 398 U.S. at 152, 90 S.Ct. 1598. In Adickes, for example, the Supreme Court considered whether Kress & Company was entitled to summary judgment on the claim that it had conspired with city police to violate the plaintiffs equal protection rights when Kress refused service at a food counter. Kress argued that summary judgment was warranted because evidence"
},
{
"docid": "11486177",
"title": "",
"text": "before they left the store and took them to the rear of the store. McClure produced the cold cream, but both women disclaimed intent to deprive the store of any goods without paying for them. Nevertheless, the police were called. Policeman Tooley arrived on the scene; Nevill and Sandel pointed out the alleged wrongdoers; and Tooley took them to police headquarters where they were fingerprinted and booked. The court found that Tooley had made no independent investigation of the facts before taking the women in. No complaint had been filed when the women were removed from Brookshire’s; Sandel later came to the station and signed a complaint form. The charges were ultimately dismissed. The court below found that appellants had acted under color of state law in violating the women’s civil rights and awarded each $6,000. Appellants’ first attack is on the threshold requirement of the suit. In order to recover under § 1983, the plaintiff must establish both deprivation of a right secured by the federal Constitution or laws and action by defendant under color of state law. Adickes v. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Appellants here are private citizens, and they contend that their actions were private as well. If so, then Smith and McClure fail on both essentials of their suit: no action under color of law and no right protected by the Fourteenth Amendment since that amendment protects against state action only. Hall v. Garson, 430 F.2d 430, 439 (5th Cir. 1970). However, in some circumstances private citizens can be found liable under § 1983. The court below did not designate specifically the reasons for finding that defendants had acted under color of state law, but appellees suggest two possibilities: delegation of state functions and joint activity with state officials. Here Sandel and Nevill were acting pursuant to now-repealed Article 1436e of the Texas Penal Code. That section provides that a merchant with reasonable grounds to believe a person has taken his goods wrongfully may, if done in a reasonable manner, detain the person to investigate ownership"
},
{
"docid": "22909230",
"title": "",
"text": "group of prisoners. Plaintiffs, after individually posting $200 property bonds, were released on Monday, October 4, Tuesday, October 5, and on Wednesday, October 6. On February 17, 1966, a complaint was filed on behalf of 68 adults and 84 minors, who had been detained in Parch-man that October, against Chief of Police Robinson, Police Officers Rickard, Cowart, Beach, and Flowers, Fire Chief Cameron, Superintendent Breazeale, J. J. Nosser, Mayor of Natchez, and T. B. Birdsong, Commissioner of Public Safety. That complaint alleged that plaintiffs were falsely imprisoned and subjected to cruel and unusual punishment, and sought monetary damages under 42 U.S.C.A. § 1983. An identical complaint on behalf of 11 additional persons was filed on October 1, 1966. Amended complaints were filed in each action on December 6 and 9, 1966, alleging false imprisonment and other torts under Mississippi law. The actions were consolidated and eventually ordered to trial in June of 1969, solely on the issue of liability. A jury returned a verdict for defendants, and plaintiffs’ subsequent motions for judgment notwithstanding the verdict or alternatively for a new trial were overruled. Plaintiffs now appeal from the district court’s denial of those motions. II. Plaintiffs rely on 42 U.S.C.A. § 1983 and Mississippi tort law joined under the doctrine of pendent jurisdiction to sustain their contention that defendants should be held liable as a matter of law. Since Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, it has been clear that section 1983 will sustain a damage action against individuals acting under color of state law for deprivation of federal constitutional rights. See also Adickes v. S. H. Kress & Co., 1970, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142. Since all defendants in this case are state or municipal officials, the requisites of section 1983 are satisfied upon a showing of the denial of a constitutional right. Furthermore, the doctrine of pendent jurisdiction permits a consideration of the related state claims. The court below exercised its discretion to join the state claims, an action justified by the Supreme Court’s decision in UMW"
},
{
"docid": "2461899",
"title": "",
"text": "person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... ” The 42nd Congress enacted the law as part of a series of steps to protect freed slaves and their supporters from abuses of local and state government power in the Reconstruction era. The statute was not used often until the Supreme Court held in Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that § 1983 could provide a federal remedy for constitutional violations even if the defendant’s action also violated state law and even if a state remedy was available. After Monroe, § 1983 became the most important vehicle for enforcing federal constitutional rights against state and local governments and their agents. Monroe also held, however, that a local government was not a “person” that could be sued under § 1983. 365 U.S. at 187-92, 81 S.Ct. 473. Most defendants under § 1983 are public employees, but private companies and their employees can also act under color of state law and thus can be sued under § 1983. E.g., Wyatt v. Cole, 504 U.S. 158, 161-62, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992); Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). In a case involving a private company, the Supreme Court took for granted that the corporate defendant would be liable under § 1983 for a constitutional tort committed by its employee. In Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), a woman sued both a police officer and a private corporation under § 1983 for race discrimination. The plaintiff was a white teacher who had entered a restaurant"
},
{
"docid": "17738670",
"title": "",
"text": "a claim under this mode of establishing liability under 42 U.S.C. § 1983. A second method by which a private individual may be held liable under 42 U.S.C. § 1983 involves the situation in which an individual jointly engages or conspires with a state official to deprive a plaintiff of his constitutionally protected rights. Such conspiracy or joint activity causes the private individual’s acts to be considered as having been taken under color of state law. Authority for this proposition is found in Adickes v. S. H. Kress and Company, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The Supreme Court in that case held that a restaurant owner was liable under 42 U.S.C. § 1983 for conspiring with a policeman to deny service to a white woman in the company of blacks. Plaintiff actually appears to rely upon this second method to establish Hein’s liability under § 1983 for actions taken “under color of state law.” The complaint alleges that he acted “in concert” with Magistrate Brown to effect plaintiff’s illegal arrest and deprive him of constitution ally protected rights. The magistrate himself is not named as a defendant in this action and could not be held liable even if he were. In a case involving the same Magistrate Brown, the Fourth Circuit recently held that a magistrate in South Carolina enjoys judicial immunity from § 1983 actions, such as this one, for money damages for actions' taken in his official capacity. Timmerman v. Brown, 528 F.2d 811 (4th Cir. 1975). Since Hein’s alleged co-conspirator in this case is immune from suit, the question next faced by the court is whether a § 1983 action can be maintained against a private individual who in no way acted under color of state law absent such an alleged conspiracy. A number of courts have considered this issue and, without exception, have concluded that the immunity of the alleged co-conspirator is fatal to the cause of action under § 1983 absent other indications that defendant acted under color of state law. Hansen v. Ahlgrimm, 520 F.2d 768 (7th Cir. 1975);"
}
] |
401763 | that such actions, in the aggregate, are sufficiently distinct from the predicate crime to support a conviction of conspiracy to commit money laundering. Diamond next argues that the evidence was insufficient to show an agreement to launder money. When a defendant joins a conspiracy, she joins an agreement rather than a group. United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir.1991). An agreement need not be explicit; a tacit agreement is sufficient to support a conspiracy conviction. United States v. Clay, 37 F.3d 338, 341 (7th Cir.1994). There is no bar to using circumstantial evidence in proving the agreement. Id. A conspiracy may be shown by evidence which shows that the conspirator embraced the criminal objective of the conspiracy. REDACTED Numerous incidents support the finding of an agreement between the co-conspirators to launder money. Diamond’s involvement in purchasing an Arab oil refinery, structuring transactions to avoid reporting requirements, the various conversations about cash and its untraceable nature, sending checks to Engel so that he could deposit them in personal and business bank accounts, and transferring money out of the country to Dubai all show that Diamond embraced the objective of the criminal conspiracy. While not dispositive in itself, the book title How to Hide Your Assets and Disappear was found on her Palm Pilot. Bank information regarding banks in Belize, the Cayman Islands, the United Arab Emirates, and Antigua were also found on her Palm Pilot. Putting all of this | [
{
"docid": "16961548",
"title": "",
"text": "be prejudiced by the variance before reversal is warranted. We determined that the defendants in Curry were not prejudiced by the district court’s decision not to instruct the jury on multiple conspiracies because the evidence was sufficient to establish a single, overarching conspiracy. Id. at 1053. The Curry opinion limited our ruling in an earlier case that stated “ ‘if the possibility of multiple conspiracies exists, the trial judge must so instruct the jury.’ ” Id. at 1052 (discussing United States v. Kendall, 665 F.2d 126, 136 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 140 (1982)). The defendants’ claim here is the same as the defendant’s claim in Curry. As in that case, the evidence here showed the defendants embraced the criminal objective of the conspiracy. At trial, several witnesses testified to Steele’s and Severson’s participation in the marijuana distribution network, and the evidence was clear that Gahring and Kaltenberg were the sources of the marijuana. Wisland, one of Severson’s customers, testified to buying marijuana packaged in Ziploc bags at Steele’s home on several occasions. She also testified that Severson told her that the marijuana originated in Mexico or Arizona. (Tr. 4-A-33-57). Gahring and Kaltenberg testified that both men met with them on previous occasions to divide marijuana and then resell it. (Tr. 3-A-10 & v. 13 p. 12) In addition, the nature of the “fronting” transactions that had occurred in the past and which Steele and Severson expected to be repeated revealed that the men shared a trusting relationship with Gahring. This type of co-operative relationship may support the premise that the defendants belonged to the overarching conspiracy. United States v. Lechuga, 994 F.2d 346, 354-355 (7th Cir.1993) (en banc) (the existence of a continuing relation implies an agreement with an objective beyond a simple buy-sell agreement). See Townsend, 924 F.2d at 1395 and cases cited therein; see also United States v. Collins, 966 F.2d 1214, 1221-24 (7th Cir.1992) (cooperative relationships and transactions with similar sequence of events support overarching conspiracy theory rather than theory of separate, multiple conspiracies). The periodic deliveries from Gahring"
}
] | [
{
"docid": "5393781",
"title": "",
"text": "intended (at least in part) to disguise the relationship of the item purchased with the person providing the proceeds and that the proceeds used to make the purchase were obtained from illegal activities.” United States v. Rounsavall, 115 F.3d 561, 565 (8th Cir.1997) (internal quotations omitted). To convict a defendant of conspiracy to launder money, the Government must prove that the defendant “knowingly joined a conspiracy to launder money and that one of the conspirators committed an overt act in furtherance of that conspiracy.” United States v. Evans, 272 F.3d 1069, 1082 (8th Cir.2001). “At base, there must exist an agreement to achieve an illegal purpose.” Id. A conspiratorial agreement “need not be formal; a tacit understanding will suffice.” United States v. Sparks, 949 F.2d 1023, 1027 (8th Cir.1991). “Moreover, the government may prove the agreement wholly by circumstantial evidence or by inference from the actions of the parties.” Id. (citations omitted). Mathias and Celia contend that the evidence is insufficient to establish the existence of an agreement among themselves and Jessica or any other persons. We do not agree. We conclude that ample evidence was produced at trial from which a reasonable jury could infer an agreement between Mathias, Celia and Jessica to launder the proceeds of Mathias’s illegal drug-trafficking activity. For example, the record supports a finding that Mathias, Jessica and Celia had a tacit understanding to conceal that Mathias was the true owner of the Lake Street and PCH condominiums and that the proceeds used to purchase the properties were obtained from his drug dealing. Jessica argues that her money-laundering conviction should be reversed because there is insufficient evidence in the record to show that she knew or should have known Mathias was involved in the distribution of controlled substances. This argument also fails. For the same reasons discussed in Jessica’s suffieieney-of-the-ev-idence challenge to her conviction under § 1957 (for example, as early as 1992 the police informed Jessica that Mathias’s home had been raided for drugs), the jury could infer that Jessica knew that the funds deposited into her accounts for the purchase of the California"
},
{
"docid": "5969212",
"title": "",
"text": "was convicted of conspiracy to commit money laundering. The district court sentenced him to one-hundred-fifty-one months imprisonment and two years supervised release. This sentence was based on the entire amount of money involved in the Omega conspiracy. Turner appeals. II. Discussion Turner takes a buckshot approach to this appeal, arguing nine full issues with subparts. We will address only those arguments which merit discussion. A. Sufficiency of the Evidence to Convict for Conspiracy to Launder Money The first issue we address is an attack on the sufficiency of the evidence. The relevant question on appeal is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We reverse only when the record contains no evidence, regardless of how it is weighed, from which a jury could find guilt beyond a reasonable doubt. To prove a conspiracy to launder money, the government must “demonstrate that [the defendant] was knowingly involved with two or more people for the purpose of money laundering and that he knew the proceeds used to further the scheme were derived from an illegal activity.” United States v. Gracia, 272 F.3d 866, 873 (7th Cir.2001); 18 U.S.C. § 1956(h). To prove the substantive offense of money laundering, the government must prove that the defendant engaged or attempted to engage in a financial transaction, knowing that the transaction involved the proceeds of specified unlawful activity, and that the defendant intended to promote the unlawful activity or knew that the transaction was designed to conceal the source, nature, location, ownership, or control of the proceeds. Gracia, 272 F.3d at 873; 18 U.S.C. § 1956. As we noted in Diamond, When a defendant joins a conspiracy, she joins an agreement rather than a group. United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir.1991). An agreement need not be explicit; a tacit agreement is sufficient to support a conspiracy conviction. United States v. Clay, 37 F.3d 338, 341 (7th Cir.1994). There is no bar to using circumstantial evidence in proving the agreement. Id. A conspiracy may be shown by evidence which shows"
},
{
"docid": "5393780",
"title": "",
"text": "have such a design.” Wynn, 61 F.3d at 926-27 (“Due to the omission of a ‘design to conceal’ element, section 1957 prohibits a wider range of activity than money ‘laundering,’ as traditionally understood.”). Therefore, we affirm Celia’s conviction on Count 18. 4. Conspiracy to Commit Money Laundering Mathias, Jessica and Celia argue that the evidence produced at trial by the Government is insufficient to support their convictions for conspiracy to commit money laundering. We do not agree. “The elements of a § 1956(a)(1)(B)® money laundering violation are: (1) that the defendant conducted a financial transaction involving the proceeds of unlawful activity; (2) that the defendant knew the proceeds involved in the transaction were the proceeds of an unlawful activity; and (3) that the defendant intended ‘to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.’ ” United States v. Dugan, 238 F.3d 1041, 1043 (8th Cir.2001) (quoting 18 U.S.C. § 1956(a)(1)(B)(i)). “[T]he purpose of the money laundering statute is to reach commercial transactions intended (at least in part) to disguise the relationship of the item purchased with the person providing the proceeds and that the proceeds used to make the purchase were obtained from illegal activities.” United States v. Rounsavall, 115 F.3d 561, 565 (8th Cir.1997) (internal quotations omitted). To convict a defendant of conspiracy to launder money, the Government must prove that the defendant “knowingly joined a conspiracy to launder money and that one of the conspirators committed an overt act in furtherance of that conspiracy.” United States v. Evans, 272 F.3d 1069, 1082 (8th Cir.2001). “At base, there must exist an agreement to achieve an illegal purpose.” Id. A conspiratorial agreement “need not be formal; a tacit understanding will suffice.” United States v. Sparks, 949 F.2d 1023, 1027 (8th Cir.1991). “Moreover, the government may prove the agreement wholly by circumstantial evidence or by inference from the actions of the parties.” Id. (citations omitted). Mathias and Celia contend that the evidence is insufficient to establish the existence of an agreement among themselves and Jessica or any other"
},
{
"docid": "223520",
"title": "",
"text": "Beltran’s drug trafficking operation. Their testimony established Lopez-Soto ran the operation when Bustamante was gone, sold methamphetamine from her home, collected drug money owed to Bel-tran, and made cross-country trips to obtain methamphetamine. This evidence is more than sufficient to satisfy the three required elements to convict. Lopez-Soto’s objection to the government’s use of indicted drug dealers to support its case amounts to a challenge to the credibility determinations made by the jury. The jury heard and credited the testimony of the government’s witnesses, and its findings are “virtually unreviewable on appeal.” United States v. Boyce, 564 F.3d 911, 916 (8th Cir.2009) (quotation and citation omitted). Lopez-Soto’s argument is without merit. So too with Lopez-Soto’s challenge to her conspiracy to commit money laundering conviction. “[T]he three essential elements of conspiracy to launder money are (1) an agreement ... to launder money; (2) the defendant’s voluntary join-der of the agreement; and (3) the defendant’s knowing joinder of the agreement.” United States v. Jarrett, 684 F.3d 800, 802 (8th Cir.2012) (quotation and citation omitted). On at least three occasions, Beltran asked Lopez-Soto to make deposits into Arbelaez’s bank account. Lopez-Soto also mentioned to Kyle Geary that Beltran was waiting on her to make a deposit. Moreover, Lopez-Soto supervised Dizdarevic when Dizdarevic made deposits. The co-conspirators limited their deposits to less than $10,000 in an attempt to conceal their drug trafficking activity. Viewed in the light most favorable to the verdict, this is sufficient evidence from which a reasonable jury could conclude Lopez-Soto knowingly and voluntarily joined an agreement to launder money. B. Management Enhancement Section 3Bl.l(b) provides, “[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.” Lopez-Soto does not dispute the conspiracy had five or more participants. Instead, she argues she was not a “manager or supervisor” because Dizda-revic, whom the district court found Lopez-Soto supervised, participated in the conspiracy prior to Lopez-Soto’s involvement. Lopez-Soto contends she could not supervise someone whose involvement preceded her own. We review the district"
},
{
"docid": "23586464",
"title": "",
"text": "v. Dent, 149 F.3d 180, 187 (3d Cir.1998) (internal citation omitted). This standard “places a very heavy burden on an appellant.” Id. (citation omitted). The elements of a conspiracy under 18 U.S.C. § 1956(h) are: (1) that an agreement was formed between two or more persons; and (2) that the defendant knowingly became a member of the conspiracy. 18 U.S.C. § 1956(h); see also Whitfield v. United States, 543 U.S. 209, 214, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005) (finding that the government need not prove an overt act in order to obtain a conviction under 18 U.S.C. § 1956(h)). The elements of the substantive crime the appellants were charged with conspiring to commit are: (1) the defendant engaged or attempted to engage in a monetary transaction; (2) involving criminally derived property of at least $10,000; (3) that the property was in fact derived from specified unlawful activity; (4) that the defendant acted knowingly, that is, with knowledge that the property was derived from the proceeds of a criminal offense; and (5) that the transaction occurred in the United States. 18 U.S.C. § 1957(a), (d). Pallitta claims that there was insufficient evidence to convict him of conspiracy to engage in money laundering (Count Seven) because the financial transaction used to support the money laundering charge was the same transaction as that used to support the bank fraud charge (Count One). In other words, he argues that Count Seven was indistinct from Count One, and because “[m]oney laundering must be a crime distinct from the crime by which the money is obtained,” United States v. Abuhouran, 162 F.3d 230, 233 (3d Cir.1998) (citation omitted), his conviction on Count Seven must be reversed. We agree, of course, that in order to support a charge of money laundering, there must have been a “discrete predicate crime” which “produced proceeds in acts distinct from the conduct that constitutes money laundering.” United States v. Mankarious, 151 F.3d 694, 705 (7th Cir.1998). See also United States v. Conley, 37 F.3d 970, 980 (3d Cir.1994) (commenting that before “proceeds” can be laundered, they must be “derived from"
},
{
"docid": "22411289",
"title": "",
"text": "for the conviction; the agreement alone is sufficient. Whitfield v. United States, 543 U.S. 209, 219, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005). However, overt acts are often helpful in determining whether an agreement is reached in the first place. It is unlikely that the government would have a paper trail which sets out the agreement to launder money. Rather, the agreement most often is inferred from circumstantial evidence tending to show the conspiracy. See United States v. Burgos, 94 F.3d 849, 857 (4th Cir.1996) (holding that because conspiracies are clandestine, resulting in little direct evidence, they are often proven entirely by circumstantial evidence). The majority concludes that because the overt acts were alleged to be the same in the drug and money laundering charges, the conviction on the drug charges necessarily shows that Boyd additionally conspired with the members of the drug conspiracy to commit money laundering. I, on the other hand, see a fundamental lack of evidence that Boyd agreed with any of the participants in the drug conspiracy to launder money. In a sufficiency of the evidence challenge, we are to draw all reasonable inferences from the evidence in favor of the government. Those inferences, however, must be based on actual evidence, not merely assumptions about the nature of drug trafficking crimes. Agent David Miller testified for the government as to Boyd’s alleged money laundering activities. His conclusions were based on a review of Boyd’s tax documents and banking records. In essence, Miller testified to discrepancies between Boyd’s spending and the income he reported to the IRS. To do so, Miller examined Boyd’s tax returns, cash deposits, and expenditures. The crux of the government’s money laundering case was a presentation of the real estate investments Boyd made which involved down payments and mortgage obligations greater than the income he reported to the IRS. The majority concludes that this evidence, along with the evidence proving that Boyd was part of the drug conspiracy, was sufficient to uphold the money laundering conviction. It is telling, however, that the majority never even mentions what evidence shows the agreement between Boyd"
},
{
"docid": "23016213",
"title": "",
"text": "was convicted on one count of conspiracy to commit mail fraud and one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956. Goldberg makes the related arguments that the evidence failed to show that he possessed the requisite intent to commit mail fraud, and that since the offense of money laundering requires knowledge that the laundered funds are the proceeds of unlawful activity, he can therefore be found guilty neither of mail fraud nor money laundering. In addition, Goldberg maintains that the Government failed to' prove that the funds transferred to the Cayman Islands were the proceeds of unlawful activity. A section 371 conspiracy comprises the following elements: (1) an agreement between the defendant and a co-conspirator to violate a law of the United States; (2) an overt act by one conspirator in furtherance of the conspiracy; and (3) the specific intent to further an unlawful objective of the conspiracy. United States v. Sharpe, 193 F.3d 852, 863 (5th Cir.1999). The requirement of an agree ment is the central element and the agreement, therefore, must be arrived at knowingly. United States v. Holcomb, 797 F.2d 1320, 1327 (5th Cir.1986); United States v. Ballard, 663 F.2d 534, 543 (5th Cir.1981). “[M]ere association with those involved in a criminal venture is insufficient to prove participation in a conspiracy.” Id.; United States v. Alvarez, 610 F.2d 1250, 1255 (5th Cir.1980), aff'd 625 F.2d 1196 (5th Cir.1980) (en banc). The existence of an agreement, however, may be proved by circumstantial evidence, see Holcomb; 797 F.2d at 1327, and even minor participation in the conspiracy may serve as the basis for a conviction. United States v. Prieto-Tejas, 779 F.2d 1098, 1103 (5th Cir.1986). Moreover, in a conspiracy case: “[a]n agreement may be inferred from ‘concert of action,’ ” “[v]oluntary participation may be inferred from ‘a collocation of circumstances,’ ” and “Knowledge may be inferred from ‘surrounding circumstances.’ ” United States v. Lechuga, 888 F.2d 1472, 1476-77 (5th Cir.1989). Inasmuch as the circumstantial evidence in this case tends to prove that Goldberg knew that Dr. Bieganowski’s clinics were engaged in fraudulent"
},
{
"docid": "223519",
"title": "",
"text": "the evidence the government presented at trial was in sufficient to sustain her conviction because the government supported its case with testimony from indicted drug dealers who sought to minimize their prison sentences. She also objects to the lack of direct evidence showing she deposited money into Arbelaez’s bank account. We review a challenge to the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the guilty verdict and granting the verdict the benefit of all reasonable inferences. United States v. Zierke, 618 F.3d 755, 760 (8th Cir.2010) (quotation and citation omitted). If a reasonable jury could have found Lopez-Soto guilty, we must affirm her conviction. Id. (quotation and citation omitted). To sustain Lopez-Soto’s conspiracy conviction, the government was required to prove (1) a conspiracy existed to distribute methamphetamine; (2) Lopez-Soto knew of the conspiracy; and (3) Lopez-Soto intentionally joined the conspiracy. See United States v. Becker, 534 F.3d 952, 957 (8th Cir.2008). The government presented the testimony of nine co-conspirators, each of whom testified about Lopez-Soto’s role in Beltran’s drug trafficking operation. Their testimony established Lopez-Soto ran the operation when Bustamante was gone, sold methamphetamine from her home, collected drug money owed to Bel-tran, and made cross-country trips to obtain methamphetamine. This evidence is more than sufficient to satisfy the three required elements to convict. Lopez-Soto’s objection to the government’s use of indicted drug dealers to support its case amounts to a challenge to the credibility determinations made by the jury. The jury heard and credited the testimony of the government’s witnesses, and its findings are “virtually unreviewable on appeal.” United States v. Boyce, 564 F.3d 911, 916 (8th Cir.2009) (quotation and citation omitted). Lopez-Soto’s argument is without merit. So too with Lopez-Soto’s challenge to her conspiracy to commit money laundering conviction. “[T]he three essential elements of conspiracy to launder money are (1) an agreement ... to launder money; (2) the defendant’s voluntary join-der of the agreement; and (3) the defendant’s knowing joinder of the agreement.” United States v. Jarrett, 684 F.3d 800, 802 (8th Cir.2012) (quotation and citation omitted). On at least"
},
{
"docid": "22400491",
"title": "",
"text": "obliged to prove that (1) a conspiracy to commit promotion money laundering was in existence, and (2) that during the conspiracy, the defendant knew that the pro ceeds used to further CCPMC’s illicit operations had been derived from an illegal activity, and knowingly joined in the conspiracy. See United States v. Diamond, 378 F.3d 720, 727 (7th Cir.2004) (“To convict a defendant of conspiracy to commit money laundering, the government must show the defendant was involved with two or more people to launder money and that the defendant knew the proceeds used to further the scheme were derived from an illegal activity.”). As explained below, substantial evidence supports each of these elements, and the district court properly denied the defendants’ requests for judgments of acquittal on the laundering conspiracy charge. a. First, the defendants challenge their convictions on the laundering conspiracy charge by contending that the evidence was insufficient to find them guilty of promotion money laundering. This contention misses the point: As a factual matter, the defendants were neither charged with nor convicted of promotion money laundering. Rather, they were charged with and convicted of conspiring to commit promotion money laundering. As a legal matter, the prosecution was not required to prove that the defendants had committed promotion money laundering in order to convict them of conspiring to do so. See Diamond, 378 F.3d at 727. Accordingly, we need not — -and do not — reach the issue of whether the evidence in this case would have supported their convictions on the substantive offense of promotion money laundering. Cf. United States v. Heaps, 39 F.3d 479, 486 (4th Cir.1994) (concluding that simple drug transaction did not constitute promotion money laundering where no evidence showed that proceeds from transaction were subsequently used to promote unlawful activity), recognized as abrogated on other grounds by United States v. Villarini, 238 F.3d 530, 534-35 (4th Cir.2001). Our inquiry is thus limited to whether the trial evidence was sufficient to sustain the defendants’ convictions for conspiracy to commit promotion money laundering. b. Second, the defendants have not assigned error to the court’s instructions on"
},
{
"docid": "23270909",
"title": "",
"text": "to support her claim for a reversal of her conviction. First she contends that the government presented insufficient evidence of her involvement in the conspiracy. Next she argues that David Avery should not have been permitted to testify about and “interpret” telephone conversations in which he was a participant. Finally, she argues again that she was entitled to an instruction stating that the buyer-seller status is a defense to the telephone charges. 1. General principles of conspiracy law To establish that a defendant is guilty of conspiracy, the government must prove that “the defendant knew of the conspiracy and intended to join and associate himself with its criminal design and purpose.” United States v. Auerbach, 913 F.2d 407, 414-15 (7th Cir.1990). We will only reverse a jury verdict if no “rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt, viewing the evidence and every reasonable inference in the light most favoring the prosecution.” United States v. Colonia, 870 F.2d 1319, 1326 (7th Cir.1989). Furthermore, we will allow a jury to infer from circumstantial evidence that a conspiracy existed. United States v. Townsend, 924 F.2d 1385, 1391 (7th Cir.1991) (“Conspiracies, like other crimes, may be proved entirely by circumstantial evidence.”). Id. A buyer-seller relationship between two people cannot, by itself, establish a conspiracy. Id. at 1394. Rather a conspiracy requires “an agreement to commit some other crime beyond the crime constituted by the agreement itself.” United States v. Lechuga, 994 F.2d 346, 349 (7th Cir.), cert. denied, — U.S. -, 114 S.Ct. 482, 126 L.Ed.2d 433 (1993). Therefore, if the only agreement is for the seller to sell, and the buyer to buy, an amount of cocaine no conspiracy exists. Id. It is not even sufficient if the evidence shows a buy-sell agreement but also shows that the buyer ultimately resold the drugs; rather, the resale must have been contemplated by the original two parties and must have been part of the “conspiratorial” agreement. Id. On the other hand if the seller agrees to sell cocaine to the buyer, and the buyer"
},
{
"docid": "5969214",
"title": "",
"text": "that the conspirator embraced the criminal objective of the con spiracy. United States v. Severson, 3 F.3d 1005, 1010 (7th Cir.1993). Diamond, 378 F.3d at 728. Within this legal framework, it is clear that Turner was part of the conspiracy to launder money. Under this court’s decision in United States v. Esterman, 324 F.3d 565 (7th Cir.2003), we know that certain types of transactions may be indicative of a design to conceal. These include transactions surrounded in unusual secrecy, structured transactions, depositing ill-gotten funds into another’s bank accounts, using third parties to conceal the real owner, or engaging in unusual financial moves which culminate in a transaction. Esterman, 324 F.3d at 573. Multiple acts show that Turner was actively involved with Hood — and Engel to a lesser extent — in concealing the source of Omega funds. His convoluted, seller-financed and interest-free loan for the Marshall property; allowing his name to be placed on the titles of various pieces of real estate when the property actually belonged to Hood; structuring deposits into his own bank account; instructing others to structure deposits into their bank accounts; and leaving town to conduct transactions involving cashier’s checks all show that he was attempting to hide the source of the funds. In showing that Turner attempted to conceal the source of the funds, the government proved that he embraced the criminal object of the conspiracy. Turner’s argument that the government failed to show concealment because his name was often used in connection with these transactions misses the mark. Turner’s identity was not the one the conspiracy was attempting to conceal, as he was not the source of the ill-gotten funds; it was Hood. The entire reason for using Turner’s name was to conceal Hood as the source of the funds. The next relevant question is whether Turner knew that the money involved in his various transactions were the proceeds of an illegal act. Notice that, the question is not whether Turner knew the actual source of the funds, merely whether he knew they were the proceeds of some illegal activity. See United States v."
},
{
"docid": "5969213",
"title": "",
"text": "used to further the scheme were derived from an illegal activity.” United States v. Gracia, 272 F.3d 866, 873 (7th Cir.2001); 18 U.S.C. § 1956(h). To prove the substantive offense of money laundering, the government must prove that the defendant engaged or attempted to engage in a financial transaction, knowing that the transaction involved the proceeds of specified unlawful activity, and that the defendant intended to promote the unlawful activity or knew that the transaction was designed to conceal the source, nature, location, ownership, or control of the proceeds. Gracia, 272 F.3d at 873; 18 U.S.C. § 1956. As we noted in Diamond, When a defendant joins a conspiracy, she joins an agreement rather than a group. United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir.1991). An agreement need not be explicit; a tacit agreement is sufficient to support a conspiracy conviction. United States v. Clay, 37 F.3d 338, 341 (7th Cir.1994). There is no bar to using circumstantial evidence in proving the agreement. Id. A conspiracy may be shown by evidence which shows that the conspirator embraced the criminal objective of the con spiracy. United States v. Severson, 3 F.3d 1005, 1010 (7th Cir.1993). Diamond, 378 F.3d at 728. Within this legal framework, it is clear that Turner was part of the conspiracy to launder money. Under this court’s decision in United States v. Esterman, 324 F.3d 565 (7th Cir.2003), we know that certain types of transactions may be indicative of a design to conceal. These include transactions surrounded in unusual secrecy, structured transactions, depositing ill-gotten funds into another’s bank accounts, using third parties to conceal the real owner, or engaging in unusual financial moves which culminate in a transaction. Esterman, 324 F.3d at 573. Multiple acts show that Turner was actively involved with Hood — and Engel to a lesser extent — in concealing the source of Omega funds. His convoluted, seller-financed and interest-free loan for the Marshall property; allowing his name to be placed on the titles of various pieces of real estate when the property actually belonged to Hood; structuring deposits into his own bank"
},
{
"docid": "22562761",
"title": "",
"text": "a conviction for either conspiracy or money laundering. Regarding the conspiracy, Diaz argues that there was no evidence that he entered into an agreement with Easterling or the other co-conspirators, and that at most the evidence shows a series of purchases between himself and the other parties, which in and of themselves do not amount to a conspiracy. An agreement may be proved by either direct or circumstantial evidence and a common scheme or plan may be inferred from the conduct of the participants or from other circumstances. The government is not required to prove that a defendant knew every detail or that he participated in every stage of the conspiracy. See United States v. Jones, 913 F.2d 1552, 1557 (11th Cir.1990). The evidence taken in the light most favorable to the government indicates that Diaz and the other co-conspirators understood them selves to be involved together in a single venture. The evidence shows that the defendant and Stafford Easterling met each other through William Hill, whom Diaz supplied with cocaine in 1985 or 1986. Stafford Easterling introduced his brother Woodrow to Diaz in approximately 1988, for the purpose of buying cocaine from defendant. From 1990 through 1994, defendant supplied Stafford Easterling with forty to sixty kilograms of cocaine on a regular basis. The jury, on the basis of these facts, could have found that Diaz was involved with the other witnesses in a single criminal venture. As to the money laundering charge, the record also contains sufficient evidence to support the conviction. Section 1957 “prohibits anyone from knowingly engaging in a monetary transaction in criminally derived property that is of a value greater than $10,000 and is derived from specified unlawful activity.” 18 U.S.C. § 1957(a). Defendant argues the government failed to present any evidence that he knew the source of the $12,000 wired to him to purchase a truck in 1992 was illegal. The trial evidence established that Diaz gave East-erling United States currency to buy a truck. Easterling then directed his wife to wire transfer $12,000 from a bank in Gainesville using her mother’s business account to"
},
{
"docid": "10596306",
"title": "",
"text": "sentencing guidelines says, “the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility” is an appropriate factor in determining whether the defendant qualifies for the reduction. While it is true that Chris ultimately pleaded guilty to the charges, he did so only after he was convicted in a jury trial. That conviction was reversed “due to an impairment of the defendants’ rights of peremptory challenges.” Underwood, 122 F.3d at 391. Based on his obstruction of justice, and his not-so-timely plea of guilty, we find that the district court did not err in denying Chris a reduction for acceptance of responsibility. C. Clement A. Messino (“Clem”) 1. Fatal Variance Clem’s first argument is that the evidence showed multiple conspiracies as opposed to the one charged in the indictment. Claims of fatal variance, such as this one, are treated as an attack on the sufficiency of the evidence. United States v. Williams, 272 F.3d 845, 863 (7th Cir.2001). Even if the evidence at trial shows the existence of multiple conspiracies, a fatal variance will not be found if a reasonable juror could have found beyond a reasonable doubt that the defendant was part of the single, charged conspiracy. Id. We view the evidence in the light most favorable to the government. Id. Furthermore, reversal is required only if the defendant can show that the variance worked to prejudice his defense. Id. When a defendant joins a conspiracy, he joins an agreement, rather than a group. United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir.1991). An agreement need not be explicit; a tacit agreement is sufficient to support a conviction for conspiracy. United States v. Clay, 37 F.3d 338, 341 (7th Cir.1994). There is no bar to using circumstantial evidence in proving the conspiracy’s agreement. Id. A conspiracy may be shown by evidence which shows that the co-conspirators embraced the criminal objective of the conspiracy, United States v. Severson, 3 F.3d 1005, 1010 (7th Cir.1993), that the conspiracy continued towards its common goal, United States v. Mojica, 185 F.3d 780, 787 (7th Cir.1999), and that there were cooperative relationships, United"
},
{
"docid": "7854360",
"title": "",
"text": "two bank accounts, conducted in plain view. However, when we look beyond the face of that transaction, and look at the transactions which immediately preceded it, we find strong and compelling evidence that the $25,000 transfer was not an innocent transaction. The record gives rise to a strong inference that the $25,000 transfer was the final step of a larger money laundering scheme willfully designed to give August access to the illegal proceeds. We conclude that there is sufficient evidence of a design to conceal. August’s money laundering conviction must stand. III. Montgomery appeals all of her convictions on sufficiency of the evidence grounds. She properly preserved that claim for appellate review by moving for judgment of acquittal at the close of the government’s case, and at the end of trial. The district court denied those motions. We review each of Montgomery’s convictions in turn. Montgomery was convicted of conspiracy under count one. To establish a conspiracy in violation of 18 U.S.C. § 371, the government must prove beyond a reasonable doubt: (1) an agreement between two or more people, (2) to commit a crime against the United States, and (3) an overt act by one of the conspirators to further the objectives of the conspiracy. 18 U.S.C. § 371; United States v. Dupre, 117 F.3d 810, 820 (5th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 857, 139 L.Ed.2d 756 (1998). The government is not required to rely on direct evidence of a conspiracy, as each element may be proven by circumstantial evidence. United States v. Casilla, 20 F.3d 600, 603 (5th Cir.), cert. denied, 513 U.S. 892, 115 S.Ct. 240, 130 L.Ed.2d 163 (1994). Moreover, the agreement need not be an express or formal agreement; a tacit understanding is sufficient. United States v. Hopkins, 916 F.2d 207, 212 (5th Cir.1990). Here, Montgomery contends that there is insufficient evidence to support her conspiracy conviction because the government failed to prove that she knowingly participated in the conspiracy. Her argument is unconvincing. At trial, there was abundant evidence that Montgomery falsified invoices, time sheets, and insurance certificates. There also was"
},
{
"docid": "5969211",
"title": "",
"text": "improve his property and hired Engel, who was both a contractor and a co-conspirator in the Omega scam, to build a bigger garage. Turner saw Hood pay Engel $40,000 for this work. The Western property also had an in-ground pool that needed repair and Hood gave Turner $7,000 to fix it. Hood testified that the money used for these loans was obtained from Omega proceeds. Turner’s involvement with Hood did not end with the above-described transactions. In addition to the loans, Turner allowed his name to be put on the titles of various properties that Hood had purchased, performed collections for Hood, delivered thousands of dollars of Omega money in cash to various persons, instructed others to structure deposits to avoid the attention of the IRS, structured deposits into his own bank account, and instructed others to destroy documents recording loans Hood had made. Turner was ultimately indicted together with nineteen other individuals involved in the Omega scheme. Turner and Arlene Diamond were the only two who pleaded not guilty and went to trial. Turner was convicted of conspiracy to commit money laundering. The district court sentenced him to one-hundred-fifty-one months imprisonment and two years supervised release. This sentence was based on the entire amount of money involved in the Omega conspiracy. Turner appeals. II. Discussion Turner takes a buckshot approach to this appeal, arguing nine full issues with subparts. We will address only those arguments which merit discussion. A. Sufficiency of the Evidence to Convict for Conspiracy to Launder Money The first issue we address is an attack on the sufficiency of the evidence. The relevant question on appeal is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We reverse only when the record contains no evidence, regardless of how it is weighed, from which a jury could find guilt beyond a reasonable doubt. To prove a conspiracy to launder money, the government must “demonstrate that [the defendant] was knowingly involved with two or more people for the purpose of money laundering and that he knew the proceeds"
},
{
"docid": "23376857",
"title": "",
"text": "the proceeds from some illegal activity, that he knew the property represented illegal proceeds, and that he conducted the transaction with the intent of promoting the unlawful activity. See 18 U.S.C. § 1956(a)(1)(A)(i); see also United States v. Montague, 29 F.3d 317, 321 (7th Cir.1994). Emerson first challenges the existence of the unlawful activity—i.e., the mail fraud—but as detailed above, the Government produced sufficient evidence of mail fraud at trial. Contrary to Emerson’s assertions, moreover, the Government also presented ample evidence linking Emerson’s purchases of personal and real property with the proceeds from the maiil fraud. Biesenthal and Keller both testified that Emerson gave them instructions about how to structure certain financial transactions that would help Emerson benefit from the fraud, and Emerson’s tax returns demonstrated the unlikelihood of Emerson’s numerous purchases in light of his earnings. Finally, the jury could reasonably accept the Government’s version of how Emerson acquired the funds he put into the properties rather than Emerson’s argument that he secretly accumulated the funds from other sources over several years. The Government similarly provided sufficient evidence of Emerson’s participation in a conspiracy to launder money. A conspiracy involves a combination of two or more people formed for the purpose of carrying out some criminal act. See United States v. Rodriguez, 53 F.3d 1439, 1444.(7th Cir. 1995). To prove this conspiracy, the Government needed to show that there .was an agreement between two or more people to launder money, that Emerson was a party to the agreement, and that one of the conspirators committed an overt act in furtherance of the agreement. See id. at 1445; see also United States v. Santos, 20 F.3d 280, 283 (7th Cir.1994); Biesenthal and Keller again provided substantial evidence inculpating Emerson on the conspiracy charge as they testified about their agreements with Emerson to engage in certain financial transactions to hide the kickbacks, as well as their actions and Emerson’s actions towards that end. The jury therefore could reasonably determine that Emerson conspired to launder money. B. Sentencing Emerson next raises several challenges to his sentence. We review a sentencing court’s factual"
},
{
"docid": "10596307",
"title": "",
"text": "be found if a reasonable juror could have found beyond a reasonable doubt that the defendant was part of the single, charged conspiracy. Id. We view the evidence in the light most favorable to the government. Id. Furthermore, reversal is required only if the defendant can show that the variance worked to prejudice his defense. Id. When a defendant joins a conspiracy, he joins an agreement, rather than a group. United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir.1991). An agreement need not be explicit; a tacit agreement is sufficient to support a conviction for conspiracy. United States v. Clay, 37 F.3d 338, 341 (7th Cir.1994). There is no bar to using circumstantial evidence in proving the conspiracy’s agreement. Id. A conspiracy may be shown by evidence which shows that the co-conspirators embraced the criminal objective of the conspiracy, United States v. Severson, 3 F.3d 1005, 1010 (7th Cir.1993), that the conspiracy continued towards its common goal, United States v. Mojica, 185 F.3d 780, 787 (7th Cir.1999), and that there were cooperative relationships, United States v. Collins, 966 F.2d 1214, 1221-24 (7th Cir.1992). Clem makes too much of the statement, in a previous appeal, that this case presented close questions on whether there was one conspiracy or multiple conspiracies. Underwood, 122 F.3d at 391. A close call it may be, but properly left to the jury and the jury ruled against him. Townsend, 924 F.2d at 1389. Clem and Dick were charged in a cocaine distribution conspiracy. Clem argues that they had completely separate cocaine businesses. While it appears that Dick and Clem had separate groups of customers, they relied on each other in obtaining the cocaine for their distribution networks. There were numerous incidents where Clem would run out of cocaine and buy ounce amounts from Dick. And, there were times when Dick would run out of cocaine and he would buy ounce amounts from Clem. These amounts were generally stop-gap measures, which prevented their respective customers from finding another source of drugs. These stop-gap amounts allowed the distribution networks to flourish. Dick and Clem used each other’s"
},
{
"docid": "11173654",
"title": "",
"text": "that Avila Joined a Single Conspiracy In order to prove that Avila participated in a conspiracy, the government must prove that he knowingly and intentionally joined in an agreement with one or more other individuals to commit an unlawful act. United States v. Gardner, 238 F.3d 878, 879 (7th Cir.2001). We have recognized that the sale of drugs, without more, does not constitute a conspiracy because the sale itself is a substantive crime. United States v. Clay, 37 F.3d 338, 341 (7th Cir.1994). Thus, “the government must prove that the defendant conspired to commit some crime beyond that agreement to sell drugs.” United States v. Rock, 370 F.3d 712, 714 (7th Cir.2004). As we have often noted, “[a]n agreement need not be explicit; a tacit agreement may support a conspiracy conviction.” United States v. Handlin, 366 F.3d 584, 589 (7th Cir.2004); see also United States v. Messino, 382 F.3d 704, 709 (7th Cir.2004). Furthermore, the gov ernment need not present any direct evidence of the agreement; circumstantial evidence alone will suffice. United States v. Zarnes, 33 F.3d 1454, 1465 (7th Cir.1994). Such evidence may include sales of large amounts of drugs, prolonged cooperation, a level of mutual trust between the parties, standardized dealings, and sales on a consignment or “fronted” basis. See, e.g., Bustamante, 493 F.3d at 884-85; United States v. Contreras, 249 F.3d 595, 599 (7th Cir.2001); Zarnes, 33 F.3d at 1465. Proving that Avila joined the conspiracy alleged in the indictment does not require that the government prove he conspired with the individuals named in the indictment. The key to proving a conspiracy is that the defendant joined the agreement, not the group. Townsend, 924 F.2d at 1389-90. Thus, the government need not establish with whom the defendant conspired. Contreras, 249 F.3d at 598. It need only prove that the defendant conspired with anyone to commit the crime charged in the indictment. See Townsend, 924 F.2d at 1389. Avila claims that the government failed to meet its burden at trial because it did not prove that he conspired to commit some crime beyond an agreement to sell drugs"
},
{
"docid": "22400492",
"title": "",
"text": "promotion money laundering. Rather, they were charged with and convicted of conspiring to commit promotion money laundering. As a legal matter, the prosecution was not required to prove that the defendants had committed promotion money laundering in order to convict them of conspiring to do so. See Diamond, 378 F.3d at 727. Accordingly, we need not — -and do not — reach the issue of whether the evidence in this case would have supported their convictions on the substantive offense of promotion money laundering. Cf. United States v. Heaps, 39 F.3d 479, 486 (4th Cir.1994) (concluding that simple drug transaction did not constitute promotion money laundering where no evidence showed that proceeds from transaction were subsequently used to promote unlawful activity), recognized as abrogated on other grounds by United States v. Villarini, 238 F.3d 530, 534-35 (4th Cir.2001). Our inquiry is thus limited to whether the trial evidence was sufficient to sustain the defendants’ convictions for conspiracy to commit promotion money laundering. b. Second, the defendants have not assigned error to the court’s instructions on the laundering conspiracy charge, and they interposed no objection to those instructions at trial. The court instructed the jury that, in order to convict on that charge, it was obliged to find beyond a reasonable doubt as to each defendant: (1) that the conspiracy alleged existed; (2) that “at some time during the ... life of the conspiracy ... the defendant knew the purpose of the agreement and then deliberately joined the conspiracy”; and (3) that “[a]t some point during the ... life of the conspiracy ... one of its alleged members knowingly performed one of the overt acts charged in order to further or advance the purpose of the conspiracy.” Tr. 2413. The court also explained to the jury the essential elements of the offense of promotion money laundering, which was the object of the laundering conspiracy charge. Tr. 2413-15. Not only have the defendants failed to assign error to the instructions, the trial court arguably added an unnecessary element to the § 1956(h) offense, favoring the defendants. The court instructed the jury that"
}
] |
220866 | "Condo. Owners Ass’n v. Peachtree Doors, Inc., 659 A.2d 267, 270 & n. 4 (Me.1995). . Id. at-270 (quoting E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 872, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986)). In Maine Rubber International v. Environmental Management Group, I concluded that Maine’s economic loss doctrine applied not just to goods sold, but also to service contracts where “[t]he critical issue ... [was] value and quality of what was purchased.” 298 F.Supp.2d 133, 138 (D.Me.2004). That is not the case here. In REDACTED Later in the same case, after transfer, a federal judge in Pennsylvania concluded that the Maine Law Court would apply the economic loss doctrine to prevent recovery of ""economic damages, the cost of reissuing debit cards and of paying for the unauthorized transactions,” in a lawsuit by a card-issuing bank against a merchant for negligence in maintaining the merchant's computer files of debit card numbers. Banknorth, N.A. v. BJ’s Wholesale Club, Inc., 442 F.Supp.2d 206, 211 (M.D.Pa.2006). Respectfully, I am not persuaded that the Law Court would apply that reasoning to these transactions between consumers and a merchant. Moreover, it is not my role as a federal judge to extend Maine law, whether it be a claim or a defense. ." | [
{
"docid": "7258052",
"title": "",
"text": "that have vary widely in their understanding of the doctrine’s scope. While some states apply the economic loss doctrine only in products liability cases or when it is apparent that a plaintiff in privity with the defendant is seeking to circumvent provisions of the contract, see, e.g., Indem. Ins. Co. of North America v. American Aviation, Inc., 891 So.2d 532, 537 (Fla.2004); Grynberg v. Agri Tech, Inc., 10 P.3d 1267, 1269 (Colo.2000), other states apply the doctrine widely, barring all claims in tort that fail to allege either personal injury or property damage. See, e.g., Nebraska Innkeepers, Inc. v. Pittsburgh-Des Moines Corp., 345 N.W.2d 124, 128 (Iowa 1984). Still other states appear to view the economic loss doctrine as a proxy for determining whether a defendant owes a special duty to the plaintiff, and undertake a foreseeability analysis in applying the doctrine. See e.g., Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576, 589 (2000); People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 495 A.2d 107, 116 (1985). Although Maine has adopted the economic loss doctrine in products liability cases, see Oceanside at Pine Point Condo. Owners Ass’n v. Peachtree Doors, 659 A.2d 267, 270 (Me.1995), the Law Court has not yet elucidated its reach beyond the realm of products. Another court in this district has inferred from Oceanside that Maine’s economic loss doctrine extends to disputes over professional service contracts. Me. Rubber Int’l v. Envtl. Mgmt. Group, Inc., 298 F.Supp.2d 133, 137-138 (D.Me.2004). Notably, privity generally still exists between the parties in such disputes. It is not immediately clear in what circumstances Maine’s economic loss doctrine might extend to parties not in privity. However, it appears to the Court that the credit card industry involves a complex web of relationships involving numerous players governed by both individual contracts and exhaustive regulations promulgated by Visa and other card networks. These relationships may well create non-contractual duties between various participants in the system, just as Plaintiff alleges. In addition, this web of relationships may or may not render Plaintiffs negligence claim susceptible to the economic loss doctrine. In"
}
] | [
{
"docid": "5382376",
"title": "",
"text": "Regulations and to determine when they have been violated. See Sovereign Bank v. BJ’s Wholesale Club, Inc., 2006 WL 1722398, at *4, *5 (M.D.Pa.2006); see also id. at *7 (quoting Visa representative’s statement that the Operating Regulations were not intended to create “ ‘direct rights of enforcement between’ [members]”). In sum, the issuing banks’ argument that the contracts between Fifth Third and Visa and MasterCard empower them to bring suit is undermined fatally by the fact that the Operating Regulations, which were incorporated into these contracts, themselves appear to deny third parties the ability to bring suit. The issuing banks’ assertion that the Operating Regulations conflict with the portions of the Merchant Agreements disclaiming the existence of intended beneficiaries is, for similar reasons, unavailing. Accordingly, this Court dismisses the contract claims. B. Negligence Under Massachusetts law, which the parties assume applies here, “purely economic losses are unrecoverable in tort and strict liability actions in the absence of personal injury or property damage.” Aldrich v. ADD Inc., 437 Mass. 213, 222, 770 N.E.2d 447 (2002) (quotation marks and citations omitted). The rationale is partly that “a commercial user can protect himself by seeking express contractual assurances concerning the product (and thereby perhaps paying more for the product) or by obtaining insurance against losses.” Bay State-Spray & Provincetown S.S., Inc. v. Caterpillar Tractor Co., 404 Mass. 103, 109-110, 533 N.E.2d 1350 (1989). In CUMIS Insurance Society, Inc. v. BJ’s Wholesale Club, Inc., No. 05-1158, slip op. at 8-9 (Mass.Super.Ct. Dec. 1, 2005) (Quinlan, J.), the Massachusetts Superior Court held that the Massachusetts formulation of the doctrine barred the negligence claims in that case. Furthermore, in cases from the Middle District of Pennsylvania, the judge held that the doctrine barred the negligence claims arising out of security breaches such as those present in the instant case. See, e.g., Pennsylvania State, 398 F.Supp.2d at 326-330 (applying Pennsylvania law that is identical to Massachusetts law). The issuing banks cite Banknorth, N.A. v. BJ’s Wholesale Club, Inc., 394 F.Supp.2d 283 (D.Me.2005), a retail security breach action that applied Maine law, which is more permissive of negligence"
},
{
"docid": "6515857",
"title": "",
"text": "Indeed, Plaintiffs concede as much in their arguments concerning ascertainable loss under the NJCFA. While it is clear to this Court that the damages sought by Plaintiffs are purely economic, Plaintiffs have limited their Complaint to statutory and common law fraud, and the tort claims of trespass to chattels and conversion, unaccompanied by any UCC or product liability claims. BIC contends that regardless of how Plaintiffs have labeled their trespass to chattels and conversion claims, they are based on product design and the economic losses sought in those claims may not be recovered in tort. After analyzing relevant State court decisions, where BIC’s argument has traction is in the principles that underlie the economic loss doctrine. Concerned that if the law of products liability “were allowed to progress too far, contract law would drown in a sea of tort,” the Supreme Court upheld the application of the economic loss doctrine in a defective product case arising under the Court’s admiralty jurisdiction. East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 866, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). The Supreme Court noted “that a manufacturer in a commercial transaction has no duty under negligence or strict products-liability theory to prevent a product from injuring itself.” Id. at 871, 106 S.Ct. 2295. Otherwise, the Supreme Court continued, a manufacturer would be subject to an unending stream of liability in tort law where the consumer’s damages do not exceed the price paid for the product, and the unending stream of liability for foreseeable damages would ultimately extend to all parties in the chain of distribution. Id. at 874, 106 S.Ct. 2295. Likely swayed by this logic, a majority of jurisdictions have adopted some form of the economic loss doctrine. New Jersey, again, is no exception. New Jersey courts have recognized the U.C.C. as a “comprehensive scheme [that] offers significant protection to consumers while insuring that merchants are not saddled with substantial and uncertain liability.” Alloway, 149 N.J. at 630, 695 A.2d 264 (citing East River, 476 U.S. at 874, 106 S.Ct. 2295). In support of the doctrine’s viability, the Spring"
},
{
"docid": "7258043",
"title": "",
"text": "ORDER ON BJ’S WHOLESALE CLUB’S MOTION TO DISMISS AND FIFTH THIRD BANK’S MOTION TO DISMISS SINGAD, Chief Judge. Before the Court are Motions to Dismiss by BJ’s Wholesale Club (Docket # 6) and Fifth Third Bank (Docket # 8). The issue presented is whether Plaintiff Banknorth, N.A. (“Banknorth”), an issuer of credit cards, may recover from Defendants in contract, tort, and equitable subrogation for Defendant BJ’s Wholesale Club’s (“BJ’s”) alleged improper storing of customers’ credit card numbers in its computers, which, in turn, led to the theft of those credit card numbers. Defendants BJ’s and Fifth Third Bank (“Fifth Third”) have moved to dismiss Bankrorth’s claims for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed below, the Court DENIES Defendants’ Motions to Dismiss. I. BACKGROUND In accordance with the standard for a motion to dismiss, the Court accepts as true Plaintiffs well-pleaded factual averments and draws “all inferences reasonably extractable from the pleaded facts in the manner most congenial to the plaintiffs theory.” Roth v. United States, 952 F.2d 611, 613 (1st Cir.1991). The parties to this case represent three types of participants in credit card networks: Plaintiff Banknorth is an “issuing bank,” which issues credit and debit cards to customers and maintains a contract with cardholders for repayment; Defendant BJ’s is a “merchant,” which sells goods or services and is authorized to accept credit and debit cards for payment; and Defendant Fifth Third is an “acquiring bank,” which helps the merchant fulfill card payments from customers by providing authorization for card transactions, crediting the merchant’s account, and then submitting the transaction to the issuing bank for settlement. In the typical transaction, the issuing bank pays the acquiring bank for the amount of the purchase, posts the transaction to the cardholder’s account, and sends a monthly statement to the cardholder to collect payment. Plaintiff Banknorth is an issuer of Visa debit cards. Defendant BJ’s, a retailer that sells consumer goods to its members, is authorized to accept Visa credit and debit cards as payment. Defendant Fifth Third is the"
},
{
"docid": "16074852",
"title": "",
"text": "constitute “other property damage” under the analogous doctrines of federal admiralty law. See East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 867, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986); see also Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 883, 117 S.Ct. 1783, 138 L.Ed.2d 76 (1997); Sea-Land Serv., Inc. v. General Elec. Co., 134 F.3d 149, 154 (3d Cir.1998). . But see Transport Corp. of Am. Inc. v. Int’l Bus. Mach. Corp., 30 F.3d 953, 957 (8th Cir.1994) (economic loss rule applied to bar tort claim where electronic disk drive integrated into computer system); see also King v. Hilton-Davis, 855 F.2d 1047, 1052 (3d Cir.1988) (damage to potatoes ruined by sprout suppressant constituted loss of expected performance subject to economic loss rule); Chicago Heights Venture v. Dynamit Nobel of Am., 782 F.2d 723 (7th Cir.1986) (damage to parts of building by collapsed roof was claim for purely economic loss because damage resulted from qualitative defect and cannot be deemed \"property damage”); R.W. Murray Co. v. Shatterproof Glass Corp., 697 F.2d 818, 829 n. 11 (8th Cir.1983) (diminution in value of building and lost rental claims barred where allegedly defective windows incorporated into building); Minneapolis Soc’y of Fine Arts v. Parker-Klein Assocs. Architects, Inc., 354 N.W.2d 816, 820 (Minn. 1984) (when defective bricks damaged building into which they had been incorporated, buildings were not \"other property”). . Because the cases cited by the Ninth Circuit in support of this proposition did not deal with the sale of goods among merchants or a claim for damages caused by an allegedly defective product, it is not clear that the Arizona Supreme Court would refuse application of the economic loss rule in the instant case. Sf. Joseph's Hosp. involved a claim of negligent misrepresentation by a hospital against a patient's insurance company for bad faith settlement practices. Donnelly Constr. Co. v. Oherg/Hunt/Gilleland, 137 Ariz. 184, 186 (1984) involved a claim of negligence brought by a building contractor against an architect. Thus, neither of the cases cited by the Ninth Circuit involved transactions that were governed by the"
},
{
"docid": "5382377",
"title": "",
"text": "marks and citations omitted). The rationale is partly that “a commercial user can protect himself by seeking express contractual assurances concerning the product (and thereby perhaps paying more for the product) or by obtaining insurance against losses.” Bay State-Spray & Provincetown S.S., Inc. v. Caterpillar Tractor Co., 404 Mass. 103, 109-110, 533 N.E.2d 1350 (1989). In CUMIS Insurance Society, Inc. v. BJ’s Wholesale Club, Inc., No. 05-1158, slip op. at 8-9 (Mass.Super.Ct. Dec. 1, 2005) (Quinlan, J.), the Massachusetts Superior Court held that the Massachusetts formulation of the doctrine barred the negligence claims in that case. Furthermore, in cases from the Middle District of Pennsylvania, the judge held that the doctrine barred the negligence claims arising out of security breaches such as those present in the instant case. See, e.g., Pennsylvania State, 398 F.Supp.2d at 326-330 (applying Pennsylvania law that is identical to Massachusetts law). The issuing banks cite Banknorth, N.A. v. BJ’s Wholesale Club, Inc., 394 F.Supp.2d 283 (D.Me.2005), a retail security breach action that applied Maine law, which is more permissive of negligence claims than the Massachusetts standard. That case, however, expressed no opinion on whether negligence claims in a situation such as that in the instant case were in fact barred by the economic loss doctrine under Maine law. Id. at 287. A later case out of the Middle District of Pennsylvania, however,, applied Maine law to facts much like those here and held that, even under Maine law, the economic loss doctrine barred the negligence claims. Banknorth, N.A. v. BJ’s Wholesale Club, Inc., 442 F.Supp.2d 206, 211-14 (M.D.Pa.2006). Whatever the proper application of Maine law, case law is unanimous in holding that the Massachusetts formulation of the economic loss doctrine applies to negligence actions such as the instant one. The issuing banks fall back on the argument that the economic loss doctrine does not, in any event, bar their negligence claim because they have incurred damage to property in that the compromised cards could.no longer be used and that loss card verification codes were lost. The Middle District of Pennsylvania, however, has rejected this argument: Plaintiffs"
},
{
"docid": "19216858",
"title": "",
"text": "Inc., 395 F.Supp.2d 183 (M.D.Pa.2005), and Pennsylvania State Employees Credit Union v. Fifth Third Bank, 398 F.Supp.2d 317 (MD.Pa.2005)(“PSECU”). We are considering BJ’s motion for summary judgment, which argues the following. First, the contract claim against it fails because it is based on Banknorth’s status as a third-party beneficiary of BJ’s contract with Fifth Third and of an alleged contract between BJ’s and Visa, but the former contract disclaims any third-party-beneficiary rights, and the latter contract does not exist. Second, the economic loss rule bars the negligence claim because Banknorth seeks damages only for economic losses, not for damages to persons or property. Third, the equitable subrogation claim (which seeks recovery for customer reimbursements) fails because Banknorth was paying on its own obligation, not that of its customers. II. Standard of Review. On a summary judgment motion under Fed.R.Civ.P. 56, the moving party, defendant BJ’s, has the initial burden of showing that Plaintiff cannot establish one or more of the essential elements of its claims. See Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir.2005). Plaintiff as the nonmoving party cannot rest upon the allegations of its pleadings but must present specific facts showing a genuine issue for trial. Id. In ruling on the motion, the court must determine if there are any genuine issues of material fact that would allow a reasonable jury to find for the nonmoving party. See Debiec v. Cabot Corp., 352 F.3d 117, 128 n. 3 (3d Cir.2003). The court must also view the record, and any inferences to be drawn from it, in the light most favorable to the nonmoving party. Id. With this standard in mind, the following is the record for summary-judgment purposes. III. Background. ‘Visa U.S.A. ... is a privately-held for profit association that supplies and supports Visa credit and debit cards issued by financial institutions to its customers ...” (ComplJ 8.) Banknorth is a national bank with its principal place of business in Portland, Maine, (id. ¶ 1), and issues debit cards to its customers, including Visa debit cards. (Id. ¶ 7.) It is an “Issuing Bank”"
},
{
"docid": "19216857",
"title": "",
"text": "MEMORANDUM CALDWELL, District Judge. I. Introduction. Plaintiff, Banknorth, N.A., filed this lawsuit against defendants, BJ’ s Wholesale Club, Inc., and Fifth Third Bank, after third parties allegedly hacked into a computer file maintained by BJ’s and obtained Visa debit-card numbers of Banknorth customers. Banknorth incurred expenses for the cost of issuing new debit cards to replace the ones that had been compromised by the theft and for the cost of reimbursing those cardholders who had suffered unauthorized charges to their accounts. Plaintiff seeks recovery of $186,000 it spent to issue new debit cards and $583,000 to cover unauthorized charges to customer’s accounts. The lawsuit makes three claims against each defendant: breach of contract, negligence and equitable subrogation. Banknorth is a Maine bank and filed this case in the United States District Court for the District of Maine, but the case was transferred here on motion of the defendants since there are two other cases pending here against BJ’s and Fifth Third that make similar claims arising from similar circumstances, Sovereign Bank v. BJ’s Wholesale Club, Inc., 395 F.Supp.2d 183 (M.D.Pa.2005), and Pennsylvania State Employees Credit Union v. Fifth Third Bank, 398 F.Supp.2d 317 (MD.Pa.2005)(“PSECU”). We are considering BJ’s motion for summary judgment, which argues the following. First, the contract claim against it fails because it is based on Banknorth’s status as a third-party beneficiary of BJ’s contract with Fifth Third and of an alleged contract between BJ’s and Visa, but the former contract disclaims any third-party-beneficiary rights, and the latter contract does not exist. Second, the economic loss rule bars the negligence claim because Banknorth seeks damages only for economic losses, not for damages to persons or property. Third, the equitable subrogation claim (which seeks recovery for customer reimbursements) fails because Banknorth was paying on its own obligation, not that of its customers. II. Standard of Review. On a summary judgment motion under Fed.R.Civ.P. 56, the moving party, defendant BJ’s, has the initial burden of showing that Plaintiff cannot establish one or more of the essential elements of its claims. See Hugh v. Butler County Family YMCA, 418 F.3d 265,"
},
{
"docid": "21402637",
"title": "",
"text": "Id. at 619. The court reasoned [i]n many cases, failure of the product to perform as expected will necessarily cause damage to other property; such damage is often not beyond the contemplation of the parties to the agreement. Damage to property, where it is the result of a commercial transaction otherwise within the ambit of the UCC, should not preclude application of the economic loss doctrine where such property damage necessarily results from the delivery of a product of poor quality. Id. at 620. Thus, because the plaintiffs lawsuit sought recovery for mainly commercial losses, the “economic loss doctrine” barred their tort claims as their losses could be better recovered under the U.C.C. In the present case, Gooch asserts claims that arose from his failed expectation of the Accent herbicide. Gooch seeks damages to recover for the economic losses resulting from the failed commercial expectation that Accent would control rhizome johnson grass without damage to his corn crop. While- damage did incidently occur to his corn crop, Gooch’s strict liability and negligence claims essentially seek recovery for the economic losses suffered as a result of a defect in the Accent. The Court believes that Kentucky’s highest court would apply the “economic loss doctrine” to preclude such a tort based theory of recovery for the losses associated with reduced crop yields due to a defective herbicide. In such a situation, the remedy provisions of the U.C.C. and contract law which are designed to place a party in the position he or she would have been in had the contract been performed provide a better form of recovery for these types of losses. See East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 872-874, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) (applying the economic loss doctrine to tort claims for damage to ship’s turbines). As the Sixth Circuit held, a plaintiff who seeks to recover damages resulting from a failed commercial expectation which caused only economic losses cannot state a viable claim under tort law. Bailey, 27 F.3d at 191; see also Maynard Coop. Co. v. Zeneca, Inc., 143 F.3d"
},
{
"docid": "19216867",
"title": "",
"text": "603 A.2d 466, 468 (Me.1992); and Scarpitti v. Weborg, 530 Pa. 366, 370-71, 609 A.2d 147, 149-50 (1992). Restatement § 302, in setting forth conditions under which a third party may claim the benefits of an agreement, allows the contracting parties to exclude a third party from suing under the agreement. That section begins: “[ujnless otherwise agreed between promi-sor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intentions of the parties and ...” Restatement § 302(1). In the instant case, the promisor (BJ’s) and the promisee (Fifth Third) “otherwise agreed.” They included in the merchant agreement a paragraph specifically providing that the contract was not for the benefit of, and not intended to be enforced by, any third party. Hence, Plaintiff is not a third-party beneficiary of the contract between BJ’s and Fifth Third and cannot bring a breach-of-contract claim for BJ’s alleged failure to follow the Visa regulations. See also Matheny v. Ohio Bancorp., 1994 WL 738734 (Ohio App.1994)(recognizing contracting parties’ right to disclaim third-party-beneficiary rights); Pejepscot Indus. Park, Inc. v. Maine Cent. R. Co., 297 F.Supp.2d 326, 331 (D.Me.2003)(same)(Maine law); Villanova, Ltd. v. Convergys, 2001 WL 868662, at *2 (E.D.Pa.2001) (same) (Pennsylvania law). B. The Negligence Claim and the Economic Loss Rule. In this lawsuit, Plaintiff is only seeking recovery of economic damages, the cost of reissuing debit cards and of paying for the unauthorized transactions. BJ’s asserts that the economic loss rule bars the negligence claim. The economic loss rule, adopted in many states, bars recovery in a negligence claim of economic damages alone. This is a statement of the rule at its most abstract level. A review of the case law would reveal that many state courts have fine-tuned the rule, depending on the factual circumstances of the case and the individual court’s view of the rule’s purpose. The Supreme Judicial Court of Maine has addressed the economic loss rule in only one context, a products liability claim, and has applied the rule to bar a negligence claim"
},
{
"docid": "12641596",
"title": "",
"text": "Supreme Court pursuant to Rule 47 of the North Dakota Rules of Appellate Procedure. Babinski v. Am. Family Ins. Group, 569 F.3d 349, 353 (8th Cir.2009) (\"Whether a federal court should certify a question to a state court is a matter of discretion.” (quotation omitted)). RILEY, Chief Judge, dissenting. Because (1) the North Dakota Supreme Court has approved tort recovery for damage to “other property” and directed its state courts away from the foreseeability approach we erroneously predicted twenty years ago in Dakota Gasification Co. v. Pascoe Building Systems, 91 F.3d 1094 (8th Cir.1996), and (2) even if Dakota Ga sification states the relevant test, it would not control the facts of this case, I dissent. I. North Dakota Law “The economic loss doctrine recognizes the distinction between the bargain expectation interests protected by contract law under the Uniform Commercial Code and the safety interests protected by tort law.” Clarys v. Ford Motor Co., 592 N.W.2d 573, 578 (N.D.1999). “‘[I]t prevents tort law from altering the allocation of costs and risks negotiated by the parties’ ” by “ ‘den[ying] a remedy in tort to a party whose complaint is rooted in disappointed contractual or commercial expectations.’ ” Dannix Painting, LLC v. Sherwin-Williams Co., 732 F.3d 902, 906 (8th Cir. 2013) (quoting Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 223 F.3d 873, 882 (8th Cir.2000), and Mut. Serv. Cas. Ins. Co. v. Elizabeth State Bank, 265 F.3d 601, 615 (7th Cir.2001)). In 1992, the North Dakota Supreme Court held, “[A] manufacturer of a machine sold in a commercial transaction may not be held liable in negligence or strict liability for economic loss caused by a failure of a component part of the machine which causes damage to the machine only.” Coop. Power Ass’n v. Westinghouse Elec. Corp., 493 N.W.2d 661, 667 (N.D.1992). In doing so, the North Dakota Supreme Court adopted the economic loss doctrine as announced in East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986), agreeing with East River that the economic loss doctrine is necessary to preserve"
},
{
"docid": "14535929",
"title": "",
"text": "courts must be accorded significant weight and should not be disregarded absent persuasive indication that the highest court would rule otherwise.”). We do not believe that the Pennsylvania Supreme Court would defy the overwhelming and unanimous precedence of its appellate and trial courts or the clear language of the UTPCPL and adopt the reasoning of a foreign federal court’s unpublished decision applying Wisconsin state law. See Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31, 39 (1998) (“[I]t is axiomatic that decisions of our federal brethren are not binding on this Court.”); Johnson, 698 A.2d at 637-40 (stating that Pennsylvania courts are not bound by earlier federal court cases regarding the.UTPCPL). Pennsylvania’s economic loss doctrine “prohibits plaintiffs from recovering in tort economic losses to which their entitlement flows only from a contract.” Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 618 (3d Cir.1995). In Pennsylvania, the purpose of the economic loss doctrine is to maintain the separation between the law of contract and the law of tort. New York State Elec. & Gas Corp. v. Westinghouse Elec. Corp., 387 Pa.Super. 537, 564 A.2d 919, 925 (1989); Blue Mountain Mushroom Co. v. Monterey Mushroom, 246 F.Supp.2d 394, 401-402 (E.D.Pa.2002). The economic loss doctrine originally applied only to product liability claims, with the expectation that parties could recover purely economic damages under contract theory. East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 871, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). The expanded reach of the doctrine to cover negligence has been justified on the basis that parties can protect themselves by negotiating the terms of a manufacturer’s liability. Id. at 872-73, 106 S.Ct. 2295. Pennsylvania courts addressing the economic loss doctrine have accepted the Supreme Court’s rationale and focused on the ability of the purchaser to recover economic harm under a breach of warranty claim. REM Coal Co. Inc. v. Clark Equipment Co., 386 Pa.Super. 401, 563 A.2d 128 (1989) (en banc). Thus, “negligence and strict liability theories do not apply in an action between commercial enterprises involving a product that malfunctions where the only resulting damage"
},
{
"docid": "14535930",
"title": "",
"text": "Corp. v. Westinghouse Elec. Corp., 387 Pa.Super. 537, 564 A.2d 919, 925 (1989); Blue Mountain Mushroom Co. v. Monterey Mushroom, 246 F.Supp.2d 394, 401-402 (E.D.Pa.2002). The economic loss doctrine originally applied only to product liability claims, with the expectation that parties could recover purely economic damages under contract theory. East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 871, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). The expanded reach of the doctrine to cover negligence has been justified on the basis that parties can protect themselves by negotiating the terms of a manufacturer’s liability. Id. at 872-73, 106 S.Ct. 2295. Pennsylvania courts addressing the economic loss doctrine have accepted the Supreme Court’s rationale and focused on the ability of the purchaser to recover economic harm under a breach of warranty claim. REM Coal Co. Inc. v. Clark Equipment Co., 386 Pa.Super. 401, 563 A.2d 128 (1989) (en banc). Thus, “negligence and strict liability theories do not apply in an action between commercial enterprises involving a product that malfunctions where the only resulting damage is to the product itself.” REM Coal, 563 A.2d. at 134 (emphasis added). Pennsylvania’s economic loss doctrine bars negligence or strict liability claims between commercial enterprises when the duties between the parties lie in contract. See East River, 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (applying doctrine in admiralty law and defining doctrine); Lower Lake Dock Company v. Messinger Bearing Corp., 395 Pa.Super. 456, 577 A.2d 631, 634-34 (1990); REM Coal, 386 Pa.Super. 401, 563 A.2d 128 (1989). The economic loss doctrine is inapplicable to O’Keefe’s claims. O’Keefe is alleging a statutory claim in addition to his common law claims. O’Keefe is claiming that MBUSA’s actions were part of a fraudulent scheme. Pennsylvania’s economic loss doctrine is inapplicable to intentional torts. O’Keefe’s entitlement does not stem solely from contract law, because his entitlement to recovery also stems from Pennsylvania statutory law under the UTPCPL. His allegations of fraudulent behavior by MBUSA clearly take this case out of the reach of Pennsylvania’s economic loss doctrine. Additionally, O’Keefe is not a commercial entity. He is"
},
{
"docid": "5382378",
"title": "",
"text": "claims than the Massachusetts standard. That case, however, expressed no opinion on whether negligence claims in a situation such as that in the instant case were in fact barred by the economic loss doctrine under Maine law. Id. at 287. A later case out of the Middle District of Pennsylvania, however,, applied Maine law to facts much like those here and held that, even under Maine law, the economic loss doctrine barred the negligence claims. Banknorth, N.A. v. BJ’s Wholesale Club, Inc., 442 F.Supp.2d 206, 211-14 (M.D.Pa.2006). Whatever the proper application of Maine law, case law is unanimous in holding that the Massachusetts formulation of the economic loss doctrine applies to negligence actions such as the instant one. The issuing banks fall back on the argument that the economic loss doctrine does not, in any event, bar their negligence claim because they have incurred damage to property in that the compromised cards could.no longer be used and that loss card verification codes were lost. The Middle District of Pennsylvania, however, has rejected this argument: Plaintiffs ... argument is that the economic loss doctrine does not apply here because BJ’s did nonetheless cause property damage to the cards that had to be replaced. [The credit union] bases this argument on the fact that the cards are tangible property and that the loss of the use of these cards, “physical tangible items[,] constitutes property damage that obviates the economic loss doctrine.” We disagree. A plaintiff must show physical damage to property, not its tangible nature, to avoid the application of the economic loss doctrine. The damages sought here, the costs of replacing the cards, are economic losses. Pennsylvania State, 398 F.Supp.2d at 330 (citation omitted). This Court adopts this reasoning and holds that the alleged “physical” destruction of the credit cards, debit cards, and security codes should instead be considered economic losses. For these reasons, this Court grants the motions by TJX and Fifth Third to dismiss the negligence claims. C. Negligent Misrepresentation Under Massachusetts law, which the parties again assume applies here, the economic loss doctrine does not apply to negligent"
},
{
"docid": "19216868",
"title": "",
"text": "738734 (Ohio App.1994)(recognizing contracting parties’ right to disclaim third-party-beneficiary rights); Pejepscot Indus. Park, Inc. v. Maine Cent. R. Co., 297 F.Supp.2d 326, 331 (D.Me.2003)(same)(Maine law); Villanova, Ltd. v. Convergys, 2001 WL 868662, at *2 (E.D.Pa.2001) (same) (Pennsylvania law). B. The Negligence Claim and the Economic Loss Rule. In this lawsuit, Plaintiff is only seeking recovery of economic damages, the cost of reissuing debit cards and of paying for the unauthorized transactions. BJ’s asserts that the economic loss rule bars the negligence claim. The economic loss rule, adopted in many states, bars recovery in a negligence claim of economic damages alone. This is a statement of the rule at its most abstract level. A review of the case law would reveal that many state courts have fine-tuned the rule, depending on the factual circumstances of the case and the individual court’s view of the rule’s purpose. The Supreme Judicial Court of Maine has addressed the economic loss rule in only one context, a products liability claim, and has applied the rule to bar a negligence claim seeking only economic damages when the claim alleges damage to the product caused by the product itself. See Oceanside at Pine Point Condo. Owners Ass’n v. Peachtree Doors, Inc., 659 A.2d 267 (Me.1995). In Oceanside, the products were condominium units with defective windows that had been made part of each unit. The defective windows allowed water damage to the units. Unit owners sued to recover for the cost of repair and correction. In adopting the rule, and barring the negligence claim, the court relied on the reasoning of East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 872, 106 S.Ct. 2295, 2302-03, 90 L.Ed.2d 865, 878 (1986), a case involving allegedly defective turbines: damage to the product itself only means that the product had insufficient value or quality, which should be the subject of express and implied warranties, not tort. 659 A.2d at 270. The difficulty in applying Oceanside here is that the instant case does not involve a defective product that has injured only itself, but the alleged negligent provision of services,"
},
{
"docid": "19216865",
"title": "",
"text": "the costs of reimbursing its affected debit-card customers for the fraudulent charges to their accounts, (id., ¶ 66), that Banknorth reimbursed its customers “to protect its own secondary rights and/or to fulfill a contractual obligation owed to its customers,” (id. ¶ 67), and that consequently “Banknorth is equitably subordinated to the claims of its affected Visa debit card customers against BJ’s as a result of its negligent and/or wrongful conduct.” (Id. ¶ 68). This claim thus does not seek recovery for the cost of reissuing debit cards. IV. Discussion. A. The Contract Claim. Plaintiffs contract claim is two-pronged. It alleges it is a third-party beneficiary (1) of a contract between BJ’s and Visa and (2) of a contract between BJ’s and Fifth Third. BJ’s argues that Plaintiff cannot be a beneficiary of a contract between BJ’s and Visa because no such contract exists. We agree with Defendant that the record shows there is no such contract and hence no basis for a third-party-beneficiary claim. Plaintiff alleges “upon information and belief’ that BJ’s has a contract with Visa that requires BJ’s compliance with the regulations, (Comply 28), but on summary judgment we must look beyond the pleadings, and the record establishes there was no contract between BJ’s and Visa during the pertinent time. See Melley v. Pioneer Bank, N.A., 834 A.2d 1191, 1202 (Pa.Super.2003)(“For appellees to be third party beneficiaries of a contract there must be a contract.”)(Pennsylvania law). On the claim based on the contract between BJ’s and Fifth Third, BJ’s argues that Plaintiff cannot be a beneficiary of BJ’s merchant agreement with Fifth Third because, as we already decided in Sovereign Bank, supra, 395 F.Supp.2d at 190-91; PSECU, supra, 398 F.Supp.2d at 323-24, the merchant agreement’s disclaimer of third-party-beneficiary rights defeats the contract claim. The parties agree that the law of Ohio, Maine and Pennsylvania is the same on this aspect of third-party-beneficiary law, all three applying the Restatement (Second) of Contracts § 302 (1981). See Hill v. Sonitrol of Southwestern Ohio Inc., 36 Ohio St.3d 36, 40, 521 N.E.2d 780, 784 (1988); F.O. Bailey Co. v. Ledgewood, Inc.,"
},
{
"docid": "19216878",
"title": "",
"text": "the risk it incurred, but did not. Finally, Plaintiff argues that Maine has allowed the recovery of economic losses in tort in Lindsey v. Mitchell, 544 A.2d 1298 (Me.1988), and Wendward Corp. v. Group Design, Inc., 428 A.2d 57 (Me.1981). Those cases provide no guidance because the issue of whether the damages were recoverable in tort was not raised in either case and they were both decided before Oceanside, supra. See Fireman’s Fund Ins. Co. v. Childs, supra, 52 F.Supp.2d at 144 and n. 4. C. The Equitable Subrogation Claim. BJ’s contends that Plaintiff cannot rely on equitable subrogation to recover the amounts it paid to cover the unauthorized charges on its cardholders’ accounts because in covering those charges Banknorth was simply discharging its own obligation to its cardholders and under Maine law equitable subrogation cannot be used to recover for the payment of one’s own debt as the primary obligor. As factual support, BJ’s points to Plaintiffs admission in its complaint that it covered these charges “to fulfill a contractual obligation to its customers.” (CompU 67). It also points to Bank-north’s guarantee to customers under the “Visa Zero Liability Policy” that they will not be responsible for fraudulent purchases on their debit cards. The policy advises cardholders: “If the card is lost or stolen and used fraudulently, you are not liable for purchases made online or at merchants.” (Doc. 16, Ex. A, Tab 3). Visa advises cardholders that its zero liability policy “covers all Visa credit and debit card transactions processed over the Visa network — online or off.” (Id., Ex. A, Tab 3). As further support for its argument that Banknorth has primary liability for the unauthorized transactions, BJ’s cites in its reply brief the following provision from the Visa Operating Regulations: Limitation of Cardholder Liability A member that issues Visa Cards must comply with this section. Upon receipt of notification from its Cardholder of unauthorized Visa Transactions, an Issuer must limit the Card holder’s liability for those Transactions to $0. (Doc. 34, Ex. B, Visa Operating Regulations, § 3.2.G.2a). In its reply brief, BJ’s also argues for"
},
{
"docid": "16938470",
"title": "",
"text": "doctrine. If a lawn mower fails to work as intended and throws off a piece of metal, which lands in the operator’s eye causing him to miss work and incur medical losses, those injuries can be recovered by a tort action. If, however, the lawn mower malfunctions, causing it to wear out in a short time and requiring repair or replacement, that is economic loss barred by the doctrine; the mower’s owner may sue only in contract. Wausau Paper Mills Co. v. Chas. T. Main, Inc., 789 F.Supp. 968, 971 (W.D.Wis.1992). The United States Supreme Court’s decision in East River S.S. Corp. v. Trans-america Delaval Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) encouraged acceptance of the doctrine and the perceived need to separate tort claims from contract claims. East River involved supertankers that malfunctioned at sea because of manufacturing defects in the turbines. The plaintiffs, who had chartered the super-tankers, sued the turbine manufacturer in negligence and strict liability for economic losses. The Supreme Court rejected the tort claims, holding that a manufacturer in a commercial relationship has no duty outside of contract “to prevent a product from injuring itself.” Id. 476 U.S. at 871, 106 S.Ct. 2295. According to the Court, “loss due to repair costs, decreased value, and lost profits is essentially the failure of the purchaser to receive the benefit of its bargain&emdash;traditionally the core concern of contract law.” Id. 476 U.S. at 870, 106 S.Ct. 2295. The Court justified its decision as necessary to protect contract law from “drown[ing] in a sea of tort.” Id. 476 U.S. at 866, 106 S.Ct. 2295. As Judge Crabb has noted, the basic theory of the doctrine is straightforward: Commercial entities are capable of bargaining to allocate the risk of loss inherent in any commercial transaction. Courts should assume that parties factor risk allocation into their agreements and that the absence of comprehensive warranties is reflected in the price paid. Permitting parties to sue in tort when the deal goes awry rewrites the agreement by allowing a party to recoup a benefit that was not part"
},
{
"docid": "19216869",
"title": "",
"text": "seeking only economic damages when the claim alleges damage to the product caused by the product itself. See Oceanside at Pine Point Condo. Owners Ass’n v. Peachtree Doors, Inc., 659 A.2d 267 (Me.1995). In Oceanside, the products were condominium units with defective windows that had been made part of each unit. The defective windows allowed water damage to the units. Unit owners sued to recover for the cost of repair and correction. In adopting the rule, and barring the negligence claim, the court relied on the reasoning of East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 872, 106 S.Ct. 2295, 2302-03, 90 L.Ed.2d 865, 878 (1986), a case involving allegedly defective turbines: damage to the product itself only means that the product had insufficient value or quality, which should be the subject of express and implied warranties, not tort. 659 A.2d at 270. The difficulty in applying Oceanside here is that the instant case does not involve a defective product that has injured only itself, but the alleged negligent provision of services, so that Oceanside’s rationale does not appear to support the application of the rule to Banknorth’s claim. Nonetheless, citing a variety of cases from other jurisdictions, BJ’s contends that Maine would apply the economic loss rule to bar Banknorth’s negligence claim, as indicated by the state supreme court’s ready adoption of the rule in the products-liability context. Defendant also relies on the application of the rule in other factual contexts by lower Maine courts and federal courts in Maine. Conversely, Plaintiff argues that in Oceanside, the state supreme court applied the rule only to products liability cases and gave no hint that it would approve its use in other contexts. Banknorth also argues that the other federal and state Maine cases BJ’s cites only applied the rule where there was privity of contract between the parties, an element absent here if we reject its claim of being a third-party beneficiary of the contract between BJ’s and Fifth Third or the alleged contract between BJ’s and Visa. Our job as a federal court sitting in diversity"
},
{
"docid": "21402633",
"title": "",
"text": "damage to the product sold. Here, Gooch seeks recovery for damage sustained to his property, the corn. The “economic loss doctrine” bars tort claims seeking recovery for damage to the product purchased. The Supreme Court of Kentucky, to date, has not adopted or rejected the “economic loss doctrine.” Under such circumstances, this Court must predict whether the state Supreme Court would adopt the doctrine. Bailey Farms, Inc. v. NOR-AM Chem. Co., 27 F.3d 188, 191 (6th Cir.1993); Overstreet v. Norden Laboratories, Inc., 669 F.2d 1286, 1290 (6th Cir.1982); Bowling Green Mun. Utils. v. Thomasson Lumber Co., 902 F.Supp. 134, 136 (W.D.Ky.1995). The Sixth Circuit and Judge Heyburn of this court have held that the Kentucky Supreme Court would adopt the economic loss doctrine and not allow recovery for purely economic losses in a product liability action based upon negligence or strict liability. Miller’s Bottled Gas, Inc. v. Borg-Warner Corp., 955 F.2d 1043, 1050 (6th Cir.1992); Scott v. Stran Bldgs., 923 F.2d 855, 1991 WL 3377 (6th Cir.1991) (unpublished decision); Thomasson, 902 F.Supp. at 138; see also Falcon Coal Co. v. Clark Equip. Co., Ky .App., 802 S.W.2d 947, 948-49 (1990). The rationale of the “economic loss doctrine” rests on the idea that the Uniform Commercial Code and contract law is the proper body of law to adequately provide for the plaintiffs recovery. Thomasson, 902 F.Supp. at 136-37 (citing East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986)). While the “economic loss doctrine” prevents tort based recovery where the damage occurs to the product, it does not apply when the plaintiff suffers damage to “other property.” In the present case, Gooch purchased Accent for application to his corn crop and, as a result of a claimed defect in the product, the corn crop suffered damage resulting in reduced yields for that year. Thus, the question the Court must answer is whether the damage to Gooch’s corn crop constitutes damage to other property so as to make the “economic loss doctrine” inapplicable. The Court finds that the corn does not constitute such other property"
},
{
"docid": "19216872",
"title": "",
"text": "to service contracts. See Gannett v. Pettegrow, 2005 WL 217036 at *8 (D.Me. Jan.28, 2005)(Kravchuk, M.J.), report adopted in 2005 WL 763276 (D.Me. Feb.17, 2005); Maine Rubber Int’l v. Envtl. Mgmt. Group, Inc., 298 F.Supp.2d 133, 136 (D.Me.2004)(deciding that Oceanside’s logic extends to service contracts); Bayreuther v. Gardner, 2000 WL 33675355 at *2 (Me.Super. June 21, 2000). We agree that the economic loss rule can be extended to service contracts. The rationale for doing so is set forth in Fireman’s Fund Ins. Co. v. SEC Donohue, Inc., 176 Ill.2d 160, 166-67, 223 Ill.Dec. 424, 679 N.E.2d 1197, 1200 (1997), quoted in Fireman’s Fund Ins. Co. v. Childs, 52 F.Supp.2d 139 (D.Me.1999), in the latter court’s discussion of the unsettled nature of the economic loss rule in Maine: A provider of services and his client have an important interest in being able to establish the terms of their relationship prior to entering into a final agreement. The policy interest supporting the ability to comprehensively define a relationship in a service contract parallels the policy interest supporting the ability to comprehensively define a relationship in a contract for the sale of goods. It is appropriate, therefore, that [the economic loss doctrine] should apply to the service industry. Just as a seller’s duties are defined by his contract with a buyer, the duties of a provider of services may be defined by the contract he enters into with his client. When this is the case, the economic loss doctrine applies to prevent the recovery of purely economic loss in tort. 52 F.Supp.2d at 145 (brackets added in Childs). This rationale echoes one mentioned in East River but not cited in Oceanside (perhaps because the plaintiffs in Oceanside were consumers, the condo minium owners), that contract law “is well suited to commercial controversies” involving a defective product that causes only economic injury because commercial parties, usually being equal in bargaining power, can “set the terms of their own agreements” and thereby allocate the risks. East River, supra, 476 U.S. at 873, 106 S.Ct. at 2302, 90 L.Ed.2d at 878. Having decided that Maine would"
}
] |
730868 | "assert that he signed the Frosch Agreement on behalf of LLC, not in his individual capacity. As a consequence, they maintain, the contract cannot be enforced against him. The court notes. first that, contrary to defendants’ assertion, Frosch’s third claim relies not on the unsigned guaranty as a basis for imposing liability, but rather on the Guaranty and Indemnity paragraph contained within the Agreement. “Under New York law, an. agent who signs an agreement on behalf of a disclosed principal will not be individually bound to the terms of the agreement ‘unless there is clear and explicit evidence of the agent’s intention to' substitute or su-peradd his personal liability for, or to, that of his principal.’"" REDACTED Weiss, 306 N.Y. 1, 4, 114 N.E.2d 177 (1953)). “Applying this presumption, New York courts have found individual liability only, in rare cases.” Id. See Mason Tenders Dist. Council Welfare Fund v. Thomsen Const. Co., 301 F.3d 50, 53-54 (2d Cir.2002) (the “high degree of intention” required for a finding of .personal liability “goes beyond the mere presence of a personal liability clause in the signed agreement”). In assessing the signatory’s intention, court consider five factors: (1). the length of the contract; (2) the location of the liability provision in relation to the signature line; (3) the presence of the signatory’s name in the. agreement itself; (4) the nature of the negotiations leading to the contract; and" | [
{
"docid": "309440",
"title": "",
"text": "“if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy.” Id. Section 35 of the Agreement specifies that disputes arising under the Agreement will be governed by New York law. Moreover, the only federal case arguably on point here is an unpublished district court opinion, Mason Tenders Dist. Council Welfare Fund v. Deb-Kar Builders, Inc., 1987 WL 15130, 1987 U.S. Dist. LEXIS 6774 (S.D.N.Y.1987). We therefore turn to New York law to resolve this dispute. B. Individual Liability of Corporate Officer Under New York Law Under New York law, an agent who signs an agreement on behalf of a disclosed principal will not be individually bound to the terms of the agreement “unless there is clear and explicit evidence of the agent’s intention to substitute or superadd his personal liability for, or to, that of his principal. Mencher v. Weiss, 306 N.Y. 1, 4, 114 N.E.2d 177, 179 (1953). The rationale behind this rule is that, “[i]n modern times most commercial business is done between corporations,” not individual stockholders or officers of the corporation, who, in many instances, own little or no stock in the corporation. Salzman Sign Co. v. Beck, 10 N.Y.2d 63, 67, 217 N.Y.S.2d 55, 57, 176 N.E.2d 74, 76 (1961). An individual who is only an indirect beneficiary of the agreement thus should not be directly bound to the terms of the agreement absent clear evidence of an intent to create individual liability. Applying this presumption, New York courts have found individual liability only in rare cases. For instance, in Paribas Properties, Inc. v. Benson, 146 A.D.2d 522, 536 N.Y.S.2d 1007 (1989) (1st Dept.), a New York court found personal liability only in the face of overwhelming evidence of the signatory’s intention to assume personal liability, including: 1) the fact that the contract was only three pages long, and thus was not a trap for an unwary signatory; 2) that the paragraph that assigned personal liability appeared directly above the signature line; 3) that the signatory’s name appeared in the agreement"
}
] | [
{
"docid": "7244565",
"title": "",
"text": "PER CURIAM. Plaintiffs, a combination of jointly administered, multi-employer, labor-management trust funds (the “funds”) that were established and maintained pursuant to various collective bargaining agreements, brought suit against Defendant Thomsen Construction Co., Inc. and its owner, Defendant Stephen Thomsen. Plaintiffs, claiming that Defendants had violated a collective bargaining agreement by ceasing to make contributions to the Funds, sought a judgment for the delinquent contributions and unremitted dues. The parties conceded liability on Thomsen Construction’s part. Following a bench trial, Magistrate Judge Ronald L. Ellis held, in an opinion and order dated September 10, 2001, that Defendant Thomsen was not personally liable for his company’s failure to make the required contributions to the Funds. Plaintiffs appeal. BACKGROUND In 1994, Thomsen organized Thomsen Construction. Thomsen, who served as President of the company, was approached by Mason Tenders Local 79 in June 1996 and asked to sign an independent collective bargaining agreement. The agreement required Thomsen Construction to make contributions to the Funds from June 1, 1996 to June 30, 1999. Thomsen was provided with an 18-page contract, and, according to Thomsen, the representatives intimated to him that there might be some kind of job action if he did not sign the contract. It is undisputed that there were no negotiations with respect to any part of the agreement. A paragraph including a clause purporting to impose personal liability appears on the signature page. It is the only paragraph on that page and it is directly above the signature line. The paragraph states in its entirety: IN WITNESS WHEREOF the parties hereto have caused this Agreement to be signed this day and year by their duly authorized officers, and represent to each other that they were duly authorized to enter into this Agreement. The person signing on behalf of the Employer also agrees to be personally bound by and to assume all obligations of the Employer provided in this Agreement and he warrants and represents that he has the authority to bind the Employer and the principals or members thereof. Thomsen claims to have read most of the agreement but not the personal"
},
{
"docid": "309441",
"title": "",
"text": "commercial business is done between corporations,” not individual stockholders or officers of the corporation, who, in many instances, own little or no stock in the corporation. Salzman Sign Co. v. Beck, 10 N.Y.2d 63, 67, 217 N.Y.S.2d 55, 57, 176 N.E.2d 74, 76 (1961). An individual who is only an indirect beneficiary of the agreement thus should not be directly bound to the terms of the agreement absent clear evidence of an intent to create individual liability. Applying this presumption, New York courts have found individual liability only in rare cases. For instance, in Paribas Properties, Inc. v. Benson, 146 A.D.2d 522, 536 N.Y.S.2d 1007 (1989) (1st Dept.), a New York court found personal liability only in the face of overwhelming evidence of the signatory’s intention to assume personal liability, including: 1) the fact that the contract was only three pages long, and thus was not a trap for an unwary signatory; 2) that the paragraph that assigned personal liability appeared directly above the signature line; 3) that the signatory’s name appeared in the agreement itself; 4) that the parties negotiated the agreement in depth; and 5) that the signatory was the president and principal shareholder in the corporation. See 146 A.D.2d at 525-26, 536 N.Y.S.2d at 1009-1010. Unlike the situation in Paribas, the evidence of an assumption of individual liability is far from overwhelming here. While the Certificate employs the pronoun “he” with regard to the signatory, arguably connoting personal liability, it also states that “he is a member” of the Association, revealing that “he” must refer to TFM, because TFM, not Lerner, was the designated member of the Association. Moreover, the structure and content of the Certificate’s signature lines also militate against individual liability. The signature lines first call for a printed designation of the firm name, TFM, and then, following the word “by,” a signature of an individual, Lerner. In legal parlance, the employment of the word “by” means “[tjhrough the means, act, agency, or instrumentality of,” see Black’s Law Dictionary 182 (5th ed. 1979), particularly when it is used preceding a signature. In other words, Lerner"
},
{
"docid": "14145267",
"title": "",
"text": "of its authority for a disclosed principal. Town & Country Appraisals, LLC v. Hart, 244 S.W.3d 187, 189 (Mo.Ct.App.2007). Grobe does not dispute that Hartford is a disclosed principal, but, rather, argues that two exceptions to the disclosed principal rule apply here: (1) the agent may be liable if the agent contracts in its own name, rather than in the name of the principal; and (2) the agent may be liable if it acted in excess of its authority. An agent to a disclosed principal may be personally liable to a third party for breach of contract if “the parties to the contract agree upon the personal liability of the agent.” Moore v. L.R. Seabaugh, 684 S.W.2d 492, 494 (Mo.Ct.App.1984) (citations omitted). A court can infer such an agreement “where the agent contracts in his own name, rather than on behalf of his principal.” Id. (citations omitted). For example, an agent that signs a contract in its own name, rather than in the name of its disclosed principal, becomes personally liable. Id. Where, however, an agent signs an agreement on behalf of his disclosed principal “and the capacity in which the individual signs is evident” the agent will not be liable on the contract “absent clear and explicit evidence of an intention to be bound.” Id. (citing Wired Music, Inc. v. Great River Steamboat Co., 554 S.W.2d 466, 468 (Mo.Ct.App.1977)). Grobe, while pointing out the existence of this exception to the general disclosed principal rule, does not allege any facts that would make the exception apply in this case. There is no evidence that Vantage signed its own name on any contract. In fact, the attached materials show that Vantage disclosed Hartford as the insurer. Dave Ford, a Hartford insurance agent, signed the initial solicitation letter. That letter identifies that the insurance is made available through the Hartford, which is further identified as an insurance company. Hartford is identified on the solicitation form filled out by Grobe, and on the insurance disclosures that follow. Each and every document attached to the complaint and motion to remand identifies Hartford as the"
},
{
"docid": "7244569",
"title": "",
"text": "liability to the liability of the entity, where entity liability is established under the agreement. Lerner, 938 F.2d at 5 (quoting Mencher v. Weiss, 306 N.Y. 1, 4, 114 N.E.2d 177 (1953)). As this Court has explained, “New York courts have found individual liability only in rare cases” since there must be “overwhelming evidence of the signatory’s intention to assume personal liability.” Id. This rule is supported by the rationale that “ ‘[i]n modern times most commercial business is done between corporations,’ not individual stockholders or officers of the corporation.” Id. (quoting Salzman Sign Co. v. Beck, 10 N.Y.2d 63, 67, 217 N.Y.S.2d 55, 176 N.E.2d 74 (1961)). In considering whether there is sufficient evidence of intent, the Lollo court, applying New York law, set forth certain factors to be considered: the contract’s length, the location of the liability provision relative to the signature line, the presence of the name of the signatory in the contract itself, “the nature of the negotiations leading to the contract,” and the signatory’s role in the corporation. Lollo, 35 F.3d at 35. Plaintiffs’ arguments to the contrary notwithstanding, the district court properly focused its analysis on the Lollo factors and, after a bench trial, concluded, in light of those factors, that the high degree of intention — which goes beyond the mere presence of a personal liability clause in the signed agreement — was not met. We see no reason to reverse the district court. We note further that the New York Court of Appeals has observed that “where individual responsibility is demanded the nearly universal practice is that the officer signs twice — once as an officer and again as an individual.” Salzman, 10 N.Y.2d at 67, 217 N.Y.S.2d 55, 176 N.E.2d 74. We have never held that two signatures are required. See Lotto, 35 F.3d at 35 (holding collective bargaining agreement imposed personal liability on signing officer under the facts of that case despite absence of separate signature of the officer in his personal capacity). But we think that the appearance of only one signature, especially when that signature is in Thomsen’s"
},
{
"docid": "1051799",
"title": "",
"text": "charge the Plan “Administrative fees during the term of this Agreement: January 1, 1997-March 31, 1999 — 19% of cash contribution income.” Campbell Decl., Exh. S (1998 ASA). In response, the Defendant argues that a finding that an individual acted in a fiduciary capacity requires “ ‘clear and explicit evidence of an [individual] defendant’s intent to add personal liability to the liability of the entity,’ ” or a contract provision expressly providing for such liability, and that neither is present here. Mingoia v. American Lath & Plaster Co., 2004 WL 2782010, at *3 (S.D.N.Y. Dec.2, 2004) (quoting Mason Tenders Dist. Council Welfare Fund v. Thomsen Constr. Co., 301 F.3d 50, 53 (2d Cir.2002)). See D. Opp. Br. at 14. But neither the scope of ERISA’s definition of a fiduciary nor the parameters of Section 523(a)(4)’s exception to discharge is limited in the way that the Defendant suggests, for several reasons. First, Mingoia addresses a different ERISA section which serves a different purpose. Mingoia, 2004 WL 2782010, at *1. Mingoia was brought pursuant to ERISA Section 515, which regulates employers in their capacities as parties to collective bargaining agreements and contractual debt obligations, while the Secretary’s action giving rise to the Consent Judgment Debt was brought pursuant to ERISA Section 409, which addresses fiduciary breaches. See 29 U.S.C. §§ 1109, 1145. See also PL Reply at 6-9. The enforcement mechanisms for each cause of action are separate and distinct. Mingoia, 2004 WL 2782010, at *1; Campbell Deck, Exh. A (District Court Complaint). See also PL Reply at 6-9. And ERISA precludes the Secretary from bringing Section 515 claims. See 29 U.S.C. § 1132(b)(2). See also Pl. Reply at 6-9. Second, and more generally, an individual may act in a fiduciary capacity under ERISA in the absence of an express contractual provision. The substance, not the form, of the individual’s activities will determine whether he or she has assumed a fiduciary’s status under ERISA. See pp. 80-81, supra. And based on his or her functional responsibilities, an owner or executive of a third party administrator may be a fiduciary even if the"
},
{
"docid": "7073829",
"title": "",
"text": "fiduciary's contract with an employer cannot get it off the hook with the employees who participate in the ERISA plan. They did not sign a contract exonerating the fiduciary.” Id. at 1418 (emphasis added). Unlike an exoneration clause — which has the drastic effect of extinguishing a claim entirely — an arbitration clause merely determines where, not whether, a claim will be heard. We do not read IT Corp. as casting doubt on Letizia's core holding that a nonsignatory can be bound by an arbitration agreement under ordinary contract and agency principles. . We note, once again, that Comer's lawsuit is not based on contract law, but on a statutory provision that allows him to bring suit under ERISA on behalf of the plans. . Trust law provides a similar answer. Under trust law, the beneficiary of a trust \"is not personally liable upon contracts made by the trustee in the course of the administration of the trust.” Restatement (Second) of Trusts § 275 (1959). In contrast to agents — who can subject their principals to personal liability — \"a trustee cannot subject the beneficiary to such liabilities.” Id. § 8 cmt. c (emphasis added). .This principle, or something like it, was applied by a New Jersey district court in Bevere v. Oppenheimer & Co., 862 F.Supp. 1243 (D.N.J.1994), a case that involved facts quite similar to our own. There, the district court held that \"individuals who are not direct signatories to an arbitration agreement may nevertheless be bound by it when their claims arise from the very contract that contains the arbitration clause.” Id. at 1249 (emphasis added). For the reasons discussed below, we do not consider Bevere’s holding persuasive. . The Court in Waffle House relied on a similar precedent in determining that the EEOC was not suing in a wholly derivative capacity. See Waffle House, 534 U.S. at 287, 122 S.Ct. 754 C'[W]e recognized the difference between the EEOC’s enforcement role and an individual employee's private cause of action in Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402"
},
{
"docid": "7244567",
"title": "",
"text": "liability provision. The first signature line of the agreement called for the company’s name, which was duly written in. Thom-sen signed the next line. His signature was preceded by the word “by” and, under his signature, Thomsen’s name is printed and followed by a hyphen and the word “president.” Thus the signature lines look as follows: Thomsen Construction [printed by hand] Print Firm Name By: [Signature written in] Stephen Thomsen—President [printed by hand] Print Name and Title In late 1998, Thomsen Construction went out of business and, in due course, payments ceased being made to the Funds. The Funds filed the instant action pursuant to § 301 of the Labor Management Relations Act (“LMRA”) and § 1132(d)(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). See 29 U.S.C. § 185(a) (allowing claims for violations of contracts between, an employer and a labor organization representing employees in an industry affecting commerce); 29 U.S.C. § § 1001 et seq. (authorizing the relevant funds to bring suit as independent legal entities). On March 12, 2001, a bench trial was held before Magistrate Judge Ellis, upon stipulation of the parties pursuant to 28 U.S.C. § 636(c). DISCUSSION Federal law governs disputes arising under § 301. See Lerner v. Amalgamated Clothing & Textile Workers Union, 938 F.2d 2, 5 (2d Cir.1991) (citing Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957)). As this Court held in Lemer, however, “state law, ‘if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy.’ ” Id. (quoting Lincoln Mills, 353 U.S. at 457, 77 S.Ct. 912). Accordingly, New York law guides the analysis in this case. See generally id. (applying New York law to resolve the question whether a collective bargaining agreement imposed personal liability on the signatory); Cement & Concrete Workers Dist. Council Welfare Fund v. Lollo, 35 F.3d 29, 35 (2d Cir.1994) (same). New York law requires that there-be “clear and explicit evidence” of the defendant’s intent to add personal"
},
{
"docid": "13410033",
"title": "",
"text": "Agreement, in which Merola was clearly acting only as a representative of Mattgo, a corporation which must necessarily act through its agents. Defendant has simply offered no evidence to suggest that Merola intended to bind himself personally or that any of the parties to the contract had reason to construe his intentions as such. Whether Mattgo is a party to the licensing agreements is more problematical. It appears beyond dispute that Volpone knew that Mattgo was serving as Nolan Ryan’s agent. Generally, “where there is a disclosed principal-agent relationship and the contract relates to a matter of the agency, the agent will not be personally bound unless there is clear and explicit evidence of the agent’s intention to substitute or superadd his personal liability for or to that of his principal.” City of New York v. Aetna Casualty and Surety Co., 1997 WL 379704 (S.D.N.Y.1997). However, an “agent may pledge his or her individual responsibility ... by engaging expressly in his or her own name to perform an obligation ... although he or she was known to be an agent and did not intend to bind himself or herself.” 2A N.Y. Jur.2d Agency and Independent Contractors § 320 (1999). Plaintiff maintains that all of the rights and obligations created by the agreements are between Ryan and Volpone. I am not convinced. Concededly the mere fact that Mattgo signed the agreements without making reference to its role as Ryan’s agent without more is insufficient to create liability on the part of Mattgo. See discussion re Merola supra. However, Mattgo signed the agreements in addition to Ryan himself. Generally, a dispute arises over an agent’s liability where the agent claims he has signed for the principal and the other party attacks that assertion. Here, the principal, Ryan, signed his own name. Thus, if Mattgo signed merely as agent for Ryan, and by its signature intended to bind only its principal, Mattgo’s signature is redundant and seemingly unnecessary. The more reasonable interpretation is that Mattgo superadded its personal liability to that of the principal. This conclusion finds support in the text of the"
},
{
"docid": "7244570",
"title": "",
"text": "F.3d at 35. Plaintiffs’ arguments to the contrary notwithstanding, the district court properly focused its analysis on the Lollo factors and, after a bench trial, concluded, in light of those factors, that the high degree of intention — which goes beyond the mere presence of a personal liability clause in the signed agreement — was not met. We see no reason to reverse the district court. We note further that the New York Court of Appeals has observed that “where individual responsibility is demanded the nearly universal practice is that the officer signs twice — once as an officer and again as an individual.” Salzman, 10 N.Y.2d at 67, 217 N.Y.S.2d 55, 176 N.E.2d 74. We have never held that two signatures are required. See Lotto, 35 F.3d at 35 (holding collective bargaining agreement imposed personal liability on signing officer under the facts of that case despite absence of separate signature of the officer in his personal capacity). But we think that the appearance of only one signature, especially when that signature is in Thomsen’s official capacity, further supports the soundness of the district court’s decision. Cf. Lerner, 938 F.2d at 5. A theory seemingly underlying Plaintiffs’ claims is that New York law addressing personal liability in corporate agreements should operate differently in the labor relations context. But, as noted. above, state law will apply to disputes arising under § 301 unless it is inconsistent with federal policy. We are not prepared to conclude that an inconsistency exists that would warrant our applying state law differently in this context. We have considered all of Appellants’ claims and find them to be without merit. The judgment of the district court is hereby Affirmed. . The parties consented to have the matter heard and decided by a magistrate judge pursuant to 28 U.S.C. § 636(c). . These factors were taken from the analysis in Lerner, which had described the factors deemed relevant by the state courts. Lerner, 938 F.2d at 4 (citing Paribas Properties, Inc. v. Benson, 146 A.D.2d 522, 536 N.Y.S.2d 1007 (1989)). . Plaintiffs argue that the district court wrongly"
},
{
"docid": "16082241",
"title": "",
"text": "in booklet form. The signature clause is on the page immediately preceding and facing the signature page. Absent an allegation of fraud, Palmadessa is presumed to have read the agreement he was signing, including the page immediately preceding and facing the page on which he signed his name. Thus, Palmadessa was personally liable for United City’s obligations under' the 1987 Agreement. See, e.g., Lollo, 35 F.3d at 35; Mason Tenders Dist. Council Welfare Fund v. John’s Insulation, Inc., No. 93 Civ. 4948 (SAS), 1995 WL 527764, at *6 (S.D.N.Y. Sept. 7, 1995); Mason Tenders Dist. Council Welfare Fund v. Pistone, No. 90 Civ. 3852 (LJF), 1992 WL 204377, at *4 (S.D.N.Y. Aug. 13,1992). Palmadessa argues more persuasively that the signature clause in the Í987 Agreement was modified in the 1990 and 1993 Agreements by the elimination of any reference to personal liability. Plaintiffs cite Pistone for the proposition that Palmadessa can be held personally liable because he signed the 1990 and 1993 Agreements. In Pistone, the defendant signed a three-year collective bargaining agreement on behalf of a corporation of which she was an officer and fifty-percent owner. Pistone, 1992 WL 204377, at *1. Like the 1987 Agreement at issue here, the agreement signed by the defendant in Pistone was in booklet form and contained a provision binding the signatory personally for the corporation’s obligations. Id. Thereafter,' the defendant signed two documents that extended the original agreement “as herein modified” for six more years. Id. at *2. A review of the record in Pistone reveals that neither of the documents extending the original agreement contained a signature clause. There was a line for the defendant’s signature, but no preceding “IN WITNESS WHEREOF” clause as there had been in the original agreement. (Ello Aff., Exh. B & C.) Under these circumstances, the court in Pistone found that the parties had not modified the personal liability provision contained in the signature clause of the original agreement, and concluded that the defendant continued to be personally liable for the obligations of the corporation incurred during the six-year extension. Pistone, 1992 WL 204377, at *4."
},
{
"docid": "16082239",
"title": "",
"text": "The. signature clause of the 1993 Agreement provides: IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be signed this day and year by their duly authorized officers, and represent to each other that they were duly authorized to enter into this Agreement. (Id. at 6.) Discussion The principal issue raised is whether Pal-madessa is personally liable for payments due under the 1990 and 1993 Agreements. Plaintiffs claim that for the period January 1, 1993 through December 28, 1993 they are owed fringe benefit contributions, union dues check-offs and NYLPAC contributions under the terms of the 1990 and 1993 Agreements. Plaintiffs argue that Palmadessa is personally liable for these amounts because the personal liability provision in the signature clause of the 1987 Agreement was incorporated by reference into the 1990 and 1993 Agreements. The Court of Appeals for the Second Circuit has recognized that although as a general matter federal law governs disputes arising under section 301 of the LMRA, state law, if compatible with the purpose of section 301, may be consulted in order to find the rule that will best effectuate the federal policy. Lerner v. Amalgamated Clothing & Textile Workers Union, 938 F.2d 2, 5 (2d Cir.1991). “Under New York law, an agent who signs an agreement on behalf of a disclosed principal will not be individually bound to the terms of the agreement ‘unless there is clear and explicit evidence of the agent’s intention to substitute or superadd his personal liability for, or to, that of his principal.’” Id. (quoting Mencher v. Weiss, 306 N.Y. 1, 4, 114 N.E.2d 177, 179 (1953)); see also Cement & Concrete Workers Dist. Council Welfare Fund v. Lollo, 35 F.3d 29, 36-37 (2d Cir.1994) (section 515 of ERISA permits recovery against corporate officers who personally obligate themselves to make pension contributions). Palmadessa argues that he is not liable under the 1987 Agreement because the signature clause was not on the same page as his signature and that he was not aware that he was assuming personal liability when, he signed the 1987 Agreement. The 1987 Agreement is printed"
},
{
"docid": "22446017",
"title": "",
"text": "not mean that state law is an irrelevancy. In general, federal courts developing federal common law are free to borrow from state law, unless there is either a demonstrated need for a uniform national rule or a significant conflict between state law and some discernible federal policy. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 728-30, 99 S.Ct. 1448, 1458-59, 59 L.Ed.2d 711 (1979). In this case, there is no overt indication that the parties intended to commit claims against appellant, as an individual, to an arbitral forum. After all, appellant signed the Purchase Agreement solely in his capacity as an agent for a disclosed principal-that is, as \"Chairman\" of Theta TI-and not in his personal capacity; and it is settled beyond peradventure that a person siginng a contract only in a corporate capacity, and unambiguously indicating that fact on the face of the contract documents, does not thereby become a party to the agreement. See, e.g., New York Ass'n for Retarded Children, Inc. v. Keator, 606 N.Y.S.2d 784, 785 (App.Div.1993) (finding corporation, but not individual, bound when president of corporation signed contract only on a line indicating his official capacity); Central Ill. Pub. Serv. Corp. v. Molinarolo, 223 Ill.App.3d 471, 165 Ill.Dec. 803, 807, 585 N.E.2d 199, 203 (1992) (holding company, but not individual, liable \"[wjhen an agent signs a document and indicates next to his signature his corporation affiliation\"); Salzman Sign Co. v. Back, 10 N.Y.2d 63, 217 N.Y.S.2d 55, 56-58, 176 N.E.2d 74, 76 (1961) (finding no individual liability where defendant signed only as president of corporation and did not otherwise explicitly indicate in the contract an intent to be bound personally); cf. Dulik v. Amante, 173 A.D.2d 674, 570 N.Y.S.2d 590, 591 (1991) (finding that a party, by signing the agreement twice, intended to bind both his corporation and himself). To be sure, the law recognizes certain contract and agency principles under which nonsignatories sometimes can be obligated by, or benefit from, agreements signed by others, and these principles can apply to arbitration provisions. See, e.g., In re Oil Spill by Amoco Cadiz, 659"
},
{
"docid": "1051798",
"title": "",
"text": "the fact that the Defendant admitted that he determined or helped to determine the amount of fees that Fidelity took from the Plan from month to month. Campbell Decl. ¶ 72 and Exh. G (Response to Notice to Admit, No. 80). The Secretary notes that between June 1, 1996, and October 2, 1998, Fidelity and the Plan entered into three different agreements concerning Fidelity’s fees. PI. S.J. Br. at 20; Campbell Decl. ¶¶ 61-66, Exh. Q (Administrative Services Agreement dated June 1, 1996 (“1996 ASA”)), Exh. R (Administrative Services Agreement dated April 7, 1997 (“1997 ASA”)), and Exh. S (Administrative Services Agreement dated October 2, 1998 (“1998 ASA”)). The 1996 ASA provided that Fidelity could charge the Plan “at cost up to 38%” in administrative fees for the first “9999 members.” Campbell Decl., Exh. Q (1996 ASA). The 1997 ASA provided that Fidelity could charge the Plan “$45 per enrolled employee, per month; after termination of this Agreement: 15% of claims paid.” Campbell Decl., Exh. R (1997 ASA). The 1998 ASA provided that Fidelity could charge the Plan “Administrative fees during the term of this Agreement: January 1, 1997-March 31, 1999 — 19% of cash contribution income.” Campbell Decl., Exh. S (1998 ASA). In response, the Defendant argues that a finding that an individual acted in a fiduciary capacity requires “ ‘clear and explicit evidence of an [individual] defendant’s intent to add personal liability to the liability of the entity,’ ” or a contract provision expressly providing for such liability, and that neither is present here. Mingoia v. American Lath & Plaster Co., 2004 WL 2782010, at *3 (S.D.N.Y. Dec.2, 2004) (quoting Mason Tenders Dist. Council Welfare Fund v. Thomsen Constr. Co., 301 F.3d 50, 53 (2d Cir.2002)). See D. Opp. Br. at 14. But neither the scope of ERISA’s definition of a fiduciary nor the parameters of Section 523(a)(4)’s exception to discharge is limited in the way that the Defendant suggests, for several reasons. First, Mingoia addresses a different ERISA section which serves a different purpose. Mingoia, 2004 WL 2782010, at *1. Mingoia was brought pursuant to ERISA Section"
},
{
"docid": "7244566",
"title": "",
"text": "and, according to Thomsen, the representatives intimated to him that there might be some kind of job action if he did not sign the contract. It is undisputed that there were no negotiations with respect to any part of the agreement. A paragraph including a clause purporting to impose personal liability appears on the signature page. It is the only paragraph on that page and it is directly above the signature line. The paragraph states in its entirety: IN WITNESS WHEREOF the parties hereto have caused this Agreement to be signed this day and year by their duly authorized officers, and represent to each other that they were duly authorized to enter into this Agreement. The person signing on behalf of the Employer also agrees to be personally bound by and to assume all obligations of the Employer provided in this Agreement and he warrants and represents that he has the authority to bind the Employer and the principals or members thereof. Thomsen claims to have read most of the agreement but not the personal liability provision. The first signature line of the agreement called for the company’s name, which was duly written in. Thom-sen signed the next line. His signature was preceded by the word “by” and, under his signature, Thomsen’s name is printed and followed by a hyphen and the word “president.” Thus the signature lines look as follows: Thomsen Construction [printed by hand] Print Firm Name By: [Signature written in] Stephen Thomsen—President [printed by hand] Print Name and Title In late 1998, Thomsen Construction went out of business and, in due course, payments ceased being made to the Funds. The Funds filed the instant action pursuant to § 301 of the Labor Management Relations Act (“LMRA”) and § 1132(d)(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). See 29 U.S.C. § 185(a) (allowing claims for violations of contracts between, an employer and a labor organization representing employees in an industry affecting commerce); 29 U.S.C. § § 1001 et seq. (authorizing the relevant funds to bring suit as independent legal entities). On March 12,"
},
{
"docid": "309442",
"title": "",
"text": "itself; 4) that the parties negotiated the agreement in depth; and 5) that the signatory was the president and principal shareholder in the corporation. See 146 A.D.2d at 525-26, 536 N.Y.S.2d at 1009-1010. Unlike the situation in Paribas, the evidence of an assumption of individual liability is far from overwhelming here. While the Certificate employs the pronoun “he” with regard to the signatory, arguably connoting personal liability, it also states that “he is a member” of the Association, revealing that “he” must refer to TFM, because TFM, not Lerner, was the designated member of the Association. Moreover, the structure and content of the Certificate’s signature lines also militate against individual liability. The signature lines first call for a printed designation of the firm name, TFM, and then, following the word “by,” a signature of an individual, Lerner. In legal parlance, the employment of the word “by” means “[tjhrough the means, act, agency, or instrumentality of,” see Black’s Law Dictionary 182 (5th ed. 1979), particularly when it is used preceding a signature. In other words, Lerner signed the agreement “on behalf of” TFM in his capacity as an agent of the corporation, and not on behalf of himself as an individual. Finally, our reading of Lerner’s intent is also reinforced by the fact that, after he printed his name on the Certificate, he wrote “it’s [sic] President,” signifying that he intended to sign the document in his official capacity. Taken together, all of these facts strongly suggest that Lerner did not intend to assume personal liability, and we therefore find that Lerner is not personally bound to the terms of the Certificate. Accordingly, the judgment of the district court is reversed and the Union is hereby stayed from seeking arbitration against Lerner in his individual capacity. MAHONEY, Circuit Judge, concurring in part and dissenting in part. I agree with the majority’s reversal of the judgment of the district court, but would remand, rather than direct that the Union be stayed from seeking arbitration against Lerner in his individual capacity. The district court concluded that “[t]he clear and indisputable language” of the"
},
{
"docid": "7244568",
"title": "",
"text": "2001, a bench trial was held before Magistrate Judge Ellis, upon stipulation of the parties pursuant to 28 U.S.C. § 636(c). DISCUSSION Federal law governs disputes arising under § 301. See Lerner v. Amalgamated Clothing & Textile Workers Union, 938 F.2d 2, 5 (2d Cir.1991) (citing Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957)). As this Court held in Lemer, however, “state law, ‘if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy.’ ” Id. (quoting Lincoln Mills, 353 U.S. at 457, 77 S.Ct. 912). Accordingly, New York law guides the analysis in this case. See generally id. (applying New York law to resolve the question whether a collective bargaining agreement imposed personal liability on the signatory); Cement & Concrete Workers Dist. Council Welfare Fund v. Lollo, 35 F.3d 29, 35 (2d Cir.1994) (same). New York law requires that there-be “clear and explicit evidence” of the defendant’s intent to add personal liability to the liability of the entity, where entity liability is established under the agreement. Lerner, 938 F.2d at 5 (quoting Mencher v. Weiss, 306 N.Y. 1, 4, 114 N.E.2d 177 (1953)). As this Court has explained, “New York courts have found individual liability only in rare cases” since there must be “overwhelming evidence of the signatory’s intention to assume personal liability.” Id. This rule is supported by the rationale that “ ‘[i]n modern times most commercial business is done between corporations,’ not individual stockholders or officers of the corporation.” Id. (quoting Salzman Sign Co. v. Beck, 10 N.Y.2d 63, 67, 217 N.Y.S.2d 55, 176 N.E.2d 74 (1961)). In considering whether there is sufficient evidence of intent, the Lollo court, applying New York law, set forth certain factors to be considered: the contract’s length, the location of the liability provision relative to the signature line, the presence of the name of the signatory in the contract itself, “the nature of the negotiations leading to the contract,” and the signatory’s role in the corporation. Lollo, 35"
},
{
"docid": "16082240",
"title": "",
"text": "in order to find the rule that will best effectuate the federal policy. Lerner v. Amalgamated Clothing & Textile Workers Union, 938 F.2d 2, 5 (2d Cir.1991). “Under New York law, an agent who signs an agreement on behalf of a disclosed principal will not be individually bound to the terms of the agreement ‘unless there is clear and explicit evidence of the agent’s intention to substitute or superadd his personal liability for, or to, that of his principal.’” Id. (quoting Mencher v. Weiss, 306 N.Y. 1, 4, 114 N.E.2d 177, 179 (1953)); see also Cement & Concrete Workers Dist. Council Welfare Fund v. Lollo, 35 F.3d 29, 36-37 (2d Cir.1994) (section 515 of ERISA permits recovery against corporate officers who personally obligate themselves to make pension contributions). Palmadessa argues that he is not liable under the 1987 Agreement because the signature clause was not on the same page as his signature and that he was not aware that he was assuming personal liability when, he signed the 1987 Agreement. The 1987 Agreement is printed in booklet form. The signature clause is on the page immediately preceding and facing the signature page. Absent an allegation of fraud, Palmadessa is presumed to have read the agreement he was signing, including the page immediately preceding and facing the page on which he signed his name. Thus, Palmadessa was personally liable for United City’s obligations under' the 1987 Agreement. See, e.g., Lollo, 35 F.3d at 35; Mason Tenders Dist. Council Welfare Fund v. John’s Insulation, Inc., No. 93 Civ. 4948 (SAS), 1995 WL 527764, at *6 (S.D.N.Y. Sept. 7, 1995); Mason Tenders Dist. Council Welfare Fund v. Pistone, No. 90 Civ. 3852 (LJF), 1992 WL 204377, at *4 (S.D.N.Y. Aug. 13,1992). Palmadessa argues more persuasively that the signature clause in the Í987 Agreement was modified in the 1990 and 1993 Agreements by the elimination of any reference to personal liability. Plaintiffs cite Pistone for the proposition that Palmadessa can be held personally liable because he signed the 1990 and 1993 Agreements. In Pistone, the defendant signed a three-year collective bargaining agreement on behalf"
},
{
"docid": "22446018",
"title": "",
"text": "but not individual, bound when president of corporation signed contract only on a line indicating his official capacity); Central Ill. Pub. Serv. Corp. v. Molinarolo, 223 Ill.App.3d 471, 165 Ill.Dec. 803, 807, 585 N.E.2d 199, 203 (1992) (holding company, but not individual, liable \"[wjhen an agent signs a document and indicates next to his signature his corporation affiliation\"); Salzman Sign Co. v. Back, 10 N.Y.2d 63, 217 N.Y.S.2d 55, 56-58, 176 N.E.2d 74, 76 (1961) (finding no individual liability where defendant signed only as president of corporation and did not otherwise explicitly indicate in the contract an intent to be bound personally); cf. Dulik v. Amante, 173 A.D.2d 674, 570 N.Y.S.2d 590, 591 (1991) (finding that a party, by signing the agreement twice, intended to bind both his corporation and himself). To be sure, the law recognizes certain contract and agency principles under which nonsignatories sometimes can be obligated by, or benefit from, agreements signed by others, and these principles can apply to arbitration provisions. See, e.g., In re Oil Spill by Amoco Cadiz, 659 F.2d 789, 795-96 (7th Cir.1981); Fisser v. International Bank, 282 F.2d 231, 233-34 (2d Cir.1960) (collecting cases). Thus, appellant’s failure to sign the Purchase Agreement individually does not in and of itself settle the somewhat different question of whether he can invoke the arbitration clause contained therein. Seizing on this possibility, appellant charts three routes by which he, as a nonsignatory, might achieve the sanctuary he desires. In the succeeding sections, we trace these routes and explain why we find them to be blind alleys. C. Appellant’s Agency Theory. Appellant's most heralded claim is that, as a disclosed agent of Theta II, he is entitled to enforce the arbitration provision included in his principal's agreement with the plaintiff. He buttresses this claim by citation to authority from several other courts of appeals. See Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, 7 F.3d 1110, 1121 (3d Cir.1993); Roby v. Corporation of Lloyd's, 996 F.2d 1353, 1360 (2d Civ.), cert. denied, — U.S. -, 114 S.Ct. 385, 126 L.Ed.2d 333 (1993); Arnold v. Arnold Corp., 920"
},
{
"docid": "18794205",
"title": "",
"text": "seasons debt at the rate of llk% per month from the due date of October 1, 1984. SCHOENEMAN’S LIABILITY If Schoeneman’s transactions with the Chapter 11 trustee were merely those of attorney in fact for Dabbagh he could not be held personally liable for his conduct, absent the existence of “clear and explicit evidence of the agent’s intention to substitute or superadd his personal liability for, or to, that of his principal.” Mencher v. Weiss, 306 N.Y. 1, 4, 114 N.E.2d 177 (1953); See, Salzman Sign Co., Inc. v. Beck, 10 N.Y.2d 63, 67, 217 N.Y.S.2d 55, 176 N.E.2d 74 (1961); Hall v. Lauderdale, 46 N.Y. 70, 74 (1871). This principal is based upon the general rule in New York that “[o]ne who deals with an agent does so at his peril, and must discover the actual scope of his authority.” Ford v. Unity Hospital, 32 N.Y.2d 464, 472, 346 N.Y.S.2d 238, 241, 299 N.E.2d 659, 664 (1973); Accord, Greene v. Hellman, 51 N.Y.2d 197, 204, 433 N.Y.S.2d 75, 412 N.E.2d 1301 (1980); General Overseas Films, Ltd. v. Robin International, Inc., 542 F.Supp. 684, 688 (S.D.N.Y.1982), aff'd 718 F.2d 1085 (2d Cir.1983). Schoeneman submitted his personal financial statement to induce TECO to advance a loan to cover the expenses of maintaining the horses. He also signed the TECO note twice in the dual capacity as attorney for Dabbagh and in Schoeneman’s individual capacity. These facts might suffice to support an intention “to substitute or superadd” Schoeneman’s personal liability to TECO. See, Mencher v. Weiss, 306 N.Y. at 5, 114 N.E.2d 177. However, Schoeneman’s liability to TECO or to Dabbagh is not at issue in this case. Schoeneman dealt with this estate as an individual who held a 25% interest in any recovery that Dabbagh might realize in this case. In order to maximize this return, Schoeneman determined that it was in their joint interests to accept the delivery of horses in kind in lieu of a possible cash distribution following the administration of this estate and to breed and sell the horses in the hope that the proceeds from their"
},
{
"docid": "13410032",
"title": "",
"text": "in a representative capacity.” Stroll v. Epstein, 818 F.Supp. 640, 644 (S.D.N.Y.1993); see also, Leonard Holzer Associates, Inc. v. Orta, 250 A.D.2d 737, 672 N.Y.S.2d 915, 916 (2nd Dept.1998) (“The fact that the agent signs the purported agreement in his own name is of no moment where the party alleging personal liability on the agent’s part was aware that the agent was, in fact, acting as the agent for a disclosed principal.”). There is no doubt that Volpone knew that Merola was the president of Mattgo. As in the Master Agreement, there is also no mention of Merola in either the Train Set or Teddy Bear Agreements. Furthermore, “[t]he knowledge of a third person obtained in a former transaction with an agent that he or she was acting as an agent for a disclosed principal is deemed to continue in a subsequent transaction of the same character between the same parties.” 2A N.Y. Jur.2d Agency and Independent Contractors § 322 (1999). The Train Set and Teddy Bear Agreements were identical in nature to the Master Agreement, in which Merola was clearly acting only as a representative of Mattgo, a corporation which must necessarily act through its agents. Defendant has simply offered no evidence to suggest that Merola intended to bind himself personally or that any of the parties to the contract had reason to construe his intentions as such. Whether Mattgo is a party to the licensing agreements is more problematical. It appears beyond dispute that Volpone knew that Mattgo was serving as Nolan Ryan’s agent. Generally, “where there is a disclosed principal-agent relationship and the contract relates to a matter of the agency, the agent will not be personally bound unless there is clear and explicit evidence of the agent’s intention to substitute or superadd his personal liability for or to that of his principal.” City of New York v. Aetna Casualty and Surety Co., 1997 WL 379704 (S.D.N.Y.1997). However, an “agent may pledge his or her individual responsibility ... by engaging expressly in his or her own name to perform an obligation ... although he or she was"
}
] |
191933 | a greater amount than the amount tendered into court. The amount due by the subcontractor to the Security State Bank is also in excess of the amount tendered. So a ruling on the priority of the liens as between the Bank and the Government will resolve the question of who is entitled to the money now in. court. There is no question that in order for the assignment held by the bank to be a valid assignment, it had to be taken under Article 260-1, Vernon’s Texas Civil Statutes. This was the same statute involved in the case of United States v. R. F. Ball Construction Co., Inc. et al., which is to be found in REDACTED 5 Cir., 239 F.2d 384, and 355 U.S. 587, 78 S.Ct. 442, 2 L.Ed.2d 510, as it existed before the 1957 amendment to the same. The pertinent part of said statute is Section 1(1) which reads as follows: “Section 1(1) ‘Account’ or ‘account receivable’ means an existing or future right to the payment of money presently due, or to become due (a) under an existing contract or under a future contract entered into during the effective period of the notice of assignment hereinafter provided for; (b) which right to payment is not secured by a chattel mortgage, a conditional sale contract, or other instrument which may be filed for record in a public office of this or another state or of the United | [
{
"docid": "4615617",
"title": "",
"text": "a final judgment. United States v. Security Trust, etc., supra. United States v. Acri, supra. No such qualification was placed by Gongress on the contractual lien of a “mortgagee”. It is the Congress which enacts the law with reference to priorities and not the courts, and I therefore hold that the Bonding Company under its assignment as collateral security, became a “mortgagee” within the meaning of 3672 and was, therefore, not affected by the tax liens which were subsequent in time. While admitting that “the Government does not claim the status of an innocent purchaser for value”, the Government does contend that because the Bonding Company did not record its assignment under the provisions of Article 260-1, R.C.S. of Texas, Vernon’s Ann. Civ.St., said assignment is therefore inferior to the claim of the Government. In Texas, the recording of an assignment adds nothing to the validity thereof as between the parties. (9 Tex.Jur. 97). As I see it, the Government is seeking to read into Section 3672 provisions which Congress has not seen fit to insert therein and the Government would have this court construe such section to read: “Such lien shall not be valid as against any mortgagee whose mortgage is due at a certain time and in a certain amount and which mortgage has been duly recorded in accordance with law.” Had Congress seen fit to make such a requirement it could have done so, but I decline to read these words into the statute, and on this point I concur in the opinion of Judge Wyche in the case of United States v. Anders Contracting Co., D.C., 111 F.Supp. 700, where the Government made identically this same contention, was overruled, and did not appeal. There remains for consideration the question as to whether or not Ball is entitled to any interpleader’s fee in this case. The Bonding Company has raised no objection to awarding such fee and in fact has presented cogent arguments as to why such fee should be allowed. The Government, on the other hand, contends that under the case of United States v. Liverpool,"
}
] | [
{
"docid": "1289399",
"title": "",
"text": "the assignments was controlled by the decision of this Court in Second National Bank v. Phillips, Trustee, 189 F.2d 115. The Government contends, correctly we think, that reliance upon our former decision was improper since it dealt with the respective rights of private creditors of a bankrupt and no question of the rights of the Government to enforcement of federal tax liens duly recorded pri- or to the assignment of a specific account, from which arises the proceeds immediately involved, was there in issue, and consequently not ruled. In that decision we also noted that the statute had not been then construed by the Texas Court, In a case subsequently decided by the Court of Civil Appeals of Texas, Fourth District, Keeran v. Salley, 244 S.W.2d 663, 666, the Court apparently restricts the effect of Article 260-1 to cover only accounts which evidence, as provided by the statute, “ ‘an existing or future right to the payment of money presently due, or to become due under an existing contract: * * and holds that where the contract from which the assigned account arises is not in existence at the time of the notice of assignment, the prior record of a general notice of assignment does not protect the assignee against the priority of claim of a plaintiff in garnishment who serves the writ of garnishment prior to the time such assignee received an assignment of the disputed account or fund. While we are not of the opinion that this holding is inconsistent with our own, we need not stop to consider the precise effect of it upon our decision for it is not necessary to do so in this case where the Government seeks to assert a lien for unpaid federal taxes as provided by Sections 3670, 3671 and 3672 of the Internal Revenue 'Code, 26 U.S.C.A. §§ 3670-3672. Whatever may be the effect of the Texas statute as between ordinary creditors the effect of the provisions and purpose of the cited sections rendered the federal tax lien superior in right to an attempted assignment of a specific account made"
},
{
"docid": "3959170",
"title": "",
"text": "as it existed before the 1957 amendment to the same. The pertinent part of said statute is Section 1(1) which reads as follows: “Section 1(1) ‘Account’ or ‘account receivable’ means an existing or future right to the payment of money presently due, or to become due (a) under an existing contract or under a future contract entered into during the effective period of the notice of assignment hereinafter provided for; (b) which right to payment is not secured by a chattel mortgage, a conditional sale contract, or other instrument which may be filed for record in a public office of this or another state or of the United States and which instrument was given at or before the time the account was assigned and reserves the title to, or creates a lien upon, goods, the sale of which gave rise to the account; and (c) which right to payment is not represented by (A) a judgment, (B) a negotiable instrument, or (C) a non-neg-otiable instrument which so represents the obligation that an assignee who takes possession of it takes rights superior to those of a prior assignee of the obligation who did not take possession of the instrument; and (d) the assignment of which right is not subject to special statutory provisions of the state or of the Federal Government relative to the rights of creditors of the assignor or to successive assignees from the assignor; ‘account’ or ‘account receivable’ shall not include any sums of money accruing to a contractor for labor performed or material furnished on any public or private com-struction contract unless the assignment properly describes the land upon which the improvements are to be constructed and such assignment filed in the office of the County Clerk of the county wherein the land lies; which assignment shall not be effective prior to such filing. As amended Acts 1955, 54th Leg., p. 822, ch. 305, § 1; Acts 1957, 55th Leg., p. 818, ch. 348, § 1.” (Emphasis supplied.) As reflected in the above quotation, the italicized portion of Article 260-1 was added by the 55th Legislature in"
},
{
"docid": "23099410",
"title": "",
"text": "are as follows: Section 1. Definitions: In this Act unless the context otherwise requires: (1) “Account” or “account receivable” means an existing or future right to the payment of money presently due, or to become due (a) under an existing contract; (b) which right to payment is not secured by a chattel mortgage, a conditional sale contract, or other instrument which may be filed for record in a public office of this or another state of the United States and which instrument was given at or before the time the account was assigned and reserves the title to, or creates, a lien upon, goods, the sale of which gave rise to the account; and (c) which right to payment is not represented by (A) a judgment,. (B) a negotiable instrument, or (C) a non-negotiable instrument which so represents the obligation that an assignee who takes possession of it takes rights superior to those of a prior assignee of the obligation who did not take possession of the instrument; and (d) the assignment of which right is not subject to special statutory provisions of the state or of the Federal Government relative to the rights of creditors of the assignor or to successive assignees from the assignor. (2) “Assignee”, “assignment”, “assignor”, and “debtor” are limited respectively to an assignee, assignment, assignor of, and debtor on an account receivable. (8) “Contract” includes express contracts, written or oral, and implied contracts, such as an obligation to pay for goods received or services rendered without an express contract. (4) “Assignment” means any transfer of an account, other than by operation of law, including but not limited to a transfer as security, the creation by agreement of a lien on an account, and sales of accounts. Sec. 2. The assignment of any account or accounts may be protected by the execution and delivery by the assignor to the assignee of an instrument or instruments in writing, assigning such account or accounts and describing the account or accounts assigned with sufficient particularity to identify the same, and by the filing for record the “Notice of Assignment”"
},
{
"docid": "23637770",
"title": "",
"text": "used in the performance of the contract, the lender is not equitably entitled to the benefit of the assignment. We reiterate what we have said in prior cases that the 1940 amendment to the Assignment of Claims Act, supra, was intended to do nothing more than to remove the prohibition embodied in Revised Statutes 3477, 31 U.S.C.A. § 203, and 3737, against assignment of a claim against the United States in the case of a financial institution lending money to a. contractor with the Government. Prior to the passage of the amendment, the contractor could not assign his claims against the Government, but under this Act he was permitted to do so to a financial institution. However, under the assignment, the bank, insofar as prior obligations were concerned, received no more than it would have gotten had Revised Statutes 3477 and 3737 not been enacted. Notwithstanding the passage of the amendment, the issue since its passage is the same as it was when the Prairie State Nat. Bank case and the Henningsen case were decided, to wit, who has the superior equity, the surety or the bank. We recognize that the Fifth Circuit takes the contrary view in Coconut Grove Exchange Bank v. New Amsterdam Cas. Co., 149 F.2d 73, and General Cas. Co. of America v. Second Nat. Bank of Houston, 178 F.2d 679. 2. In the National Surety Co. case, the First National Bank in Houston also claims under an assignment executed under article 260-1 of Vernon’s Civil Statutes of the State of Texas. This assignment was executed on January 30, 1950. The contract in the National Surety Company case was entered into on September 1, 1950, and, hence, the statute relied upon is not applicable because it relates to the assignment of accounts due or to become due “under an existing contract.” This contract not having been in existence at the time of the assignment, amounts due under it are not covered by the assignment. It was so held by the Texas Court of Civil Appeals in Keeran v. Salley, 244 S.W.2d 663. The same thing was"
},
{
"docid": "23099395",
"title": "",
"text": "nothing more than to remove the prohibition embodied in Revised Statutes 3477 and 3737, against assignment of a claim against the United States in the case of a financial institution lending money to a contractor with the Government. Prior to the passage of the amendment, the contractor could not assign his claims against the Government, but under this Act he was permitted to do so to a financial institution. However, under the assignment, the bank, insofar as prior obligations were concerned, received no more than it would have gotten had Eevised Statutes 3477 and 3737 not been enacted. Notwithstanding the passage of the amendment, the issue since its passage is the same as it was when the Prairie State Bank case and the Hermingsen case were decided, to wit, who has the superior equity, the surety or the bank. We recognize that the Fifth Circuit takes the contrary view in Coconut Grove Exchange Bank v. The New Amsterdam Casualty Co., 149 F. 2d 73, and General Casualty Co. v. Second National Bank of Houston, 178 F. 2d 679. 2. In the National Surety Company case, the First National Bank in Houston also claims under an assignment executed under article 260-1 of Vernon’s Civil Statutes of the State of Texas. This assignment was executed on January 30, 1950. The contract in the National Surety Company case was entered into on September 1, 1950, and, hence, the statute relied upon is not applicable because it relates to the assignment of accounts due or to become due “under an existing contract.” This contract not having been in existence at the time of the assignment, amounts due under it are not covered by the assignment. It was so held by the Texas Court of Civil Appeals in Kieran v. Salley, 244 S. W. 2d 663. The same thing was held by the United States District Court for New Jersey concerning a similar statute, in the case of Seaboard Surety Co. v. State of North Dakota, 94 F. Supp. 177. The surety’s assignment was by operation of law, which does not appear to be covered"
},
{
"docid": "23099409",
"title": "",
"text": "Houston in the State of Texas, this Jan. 30, 1950. Thomas Bryan and Associates, Inc. by /s/ Robert W. Hasty, Treas. by /s/ Charles C. Hebing, V. P. The State op Texas County op Harris Before me, the undersigned authority, a Notary Public in and for said County and State, personally appeared Robert W. Hasty and Charles 0. Hebing, known to me to be the person whose name is subscribed to the foregoing instrument in writing and acknowledged to me that he excuted the same for the purposes and consideration therein expressed and in the capacity therein stated. In witness whereof, I have hereto set my hand and seal of office this Jan. 30,1950. /s/ James B. Thomas Notary Public in and for Harris County, Texas. This notice of assignment was filed of record in the office of the County Clerk of Harris County, Texas, on January 30, 1950, being instrument No. 220416, entered in the Chattel Mortgage Register, Vol. 410, Page 75. 14. The pertinent provisions of Article 260-1 of the Texas Civil Statutes are as follows: Section 1. Definitions: In this Act unless the context otherwise requires: (1) “Account” or “account receivable” means an existing or future right to the payment of money presently due, or to become due (a) under an existing contract; (b) which right to payment is not secured by a chattel mortgage, a conditional sale contract, or other instrument which may be filed for record in a public office of this or another state of the United States and which instrument was given at or before the time the account was assigned and reserves the title to, or creates, a lien upon, goods, the sale of which gave rise to the account; and (c) which right to payment is not represented by (A) a judgment,. (B) a negotiable instrument, or (C) a non-negotiable instrument which so represents the obligation that an assignee who takes possession of it takes rights superior to those of a prior assignee of the obligation who did not take possession of the instrument; and (d) the assignment of which right"
},
{
"docid": "17667257",
"title": "",
"text": "the bankrupt was insolvent. The most that can be said of this evidence is that it does not warrant the inference that the appellant could have entertained a well-founded belief as opposed to a mere suspicion that Ronston was insolvent prior to June 18. The order of the District Court must, therefore, be reversed in part and modified by eliminating therefrom the sum of $3,355.60 representing collections made prior to June 18, and as so modified the order of the District Court requiring appellant to pay to¡ the trustee, for the benefit of the estate of the bankrupt, the sum of $7,787.23 is hereby affirmed. . The Notice of Assignment reads as follows: “Notice is hereby given that Ronston Corp. whose mailing address is 240 Com-stock, Dallas, Texas, and whose place of business is 240 Comstock, Dallas, Texas, has assigned or intends to assign one or more accounts to Republic National Bank of Dallas, whose mailing address is P.O. Box 5961, Dallas 2, Texas, and whose place of business is 1315 Main, Dallas, Texas, and that this notice of assignment shall be effective for the period of August 18. 1953 to August 18, 1950.” . When the bankrupt became seriously involved in June, the appellant undertook to make the collections. . The collections were as follows: . Thereafter, by Acts 1955, 54th Leg., p. 823, ch. 305, § 1, Art. 260-1 was amended to provide that accounts receivable “means an existing or future right to the payment of money presently due, or to become due (a) under an existing contract or under a future contract en-. tered into during the effective period of the notice of assignment * * By the same amendment it was also provided that the Notice of Assignment “shall protect the assignment of accounts which arise during such effective period and which originate out of existing or future contracts, and are assigned by assignor to assignee at any time during such * * * period, regardless of whether such account was in the contemplation of the assignor and assignee when such notice was executed.” No provision"
},
{
"docid": "1289398",
"title": "",
"text": "administration expenses had been deducted from the sum received by the trustee from Harris County, the remainder should be pro-rated between the Bank and the Collector of Internal Revenue. The Government filed a petition for review of the Referee’s order, and the Bank filed a cross- petition. Whereupon the District Court decided that the entire balance of $1,935.88 after deduction of the administration expenses, should be paid to the Bank. From that decision, the Government appealed to this Court.” It is the contention of the United States that the District Court erred in holding that the Bank’s lien, which was not perfected until after notice of the federal tax liens had been filed with the County Clerk, was superior to the Government’s lien. The judgment of the Court was induced by its consideration of the notice of assignment filed in accordance with the provisions of the Texas statute providing for the protection of assignment of accounts by filing for record a “ ‘Notice of Assignment’ ” and its view that the validity and superiority of the assignments was controlled by the decision of this Court in Second National Bank v. Phillips, Trustee, 189 F.2d 115. The Government contends, correctly we think, that reliance upon our former decision was improper since it dealt with the respective rights of private creditors of a bankrupt and no question of the rights of the Government to enforcement of federal tax liens duly recorded pri- or to the assignment of a specific account, from which arises the proceeds immediately involved, was there in issue, and consequently not ruled. In that decision we also noted that the statute had not been then construed by the Texas Court, In a case subsequently decided by the Court of Civil Appeals of Texas, Fourth District, Keeran v. Salley, 244 S.W.2d 663, 666, the Court apparently restricts the effect of Article 260-1 to cover only accounts which evidence, as provided by the statute, “ ‘an existing or future right to the payment of money presently due, or to become due under an existing contract: * * and holds that where"
},
{
"docid": "23396395",
"title": "",
"text": "to secure payment. We conclude that the assignment did not make the Finance Company a purchaser within the meaning of § 6323. Instead it is a lienor. At the time of the filing of the notices of the federal tax lien, the lien of the Finance Company was inchoate and had not been perfected. Not only had no action been taken to perfect the lien but, also, the amount of the debt to be collected from the security had not been determined. The perfected lien standard, which has been imposed by the Supreme Court in cases involving liens under state law in competition with federal tax liens, is fatal to the claim of the Finance Company. While only one such decision involves an assignment given as security for a debt, that decision, United States v. R. F. Ball Construction Co. Inc., 355 U.S. 587, 78 S.Ct. 442, 2 L.Ed.2d 510, rehearing denied 356 U.S. 934, 78 S.Ct. 770, 2 L.Ed.2d 763, is controlling here. There, as in the case at bar, the plaintiff brought an interpleader action in which moneys due under a construction contract were paid into court. A bonding company claimed under an assignment given as security to assure payment of a contingent indebtedness which did not arise until after the filing of the notice of the federal tax lien. The trial court decided for the bonding company on the ground that the assignment as collateral security was a perfected contractual lien and the Court of Appeals affirmed. The Supreme Court, in a five to four decision, reversed saying that as the assignment involved was inchoate the provisions of § 3672(a) of the 1939 Code did not apply. In two recent district court decisions the Ball Construction Company decision has been applied in factual situations quite similar to that here under consideration. The Finance Company attempts to distinguish the Ball Construction Company decision from the instant case on the ground that Ball involved an assignment to secure a contingent or future indebtedness, whereas here the assignment was to secure a present and existing debt. This same point was"
},
{
"docid": "3959173",
"title": "",
"text": "amendatory act, Section 1(1) of Article 260-1 as quoted above, the caption given said Act was as follows: “An Act relating to protected assignments of accounts receivable; amending subdivision (1) of Section 1 of Chapter 293, Acts of the Forty-ninth Legislature, as amended (Article 260-1, Vernon’s Texas Civil Statutes), so as to change the definition of ‘account’ or ‘account receivable’ by deleting provisions excluding sums accruing to a contractor who has furnished a surety bond; and declaring an emergency.” The emergency clause contained in said Act, as Section 2 thereof, reads as follows: “Sec. 2. The fact that the present definition of ‘account’ or ‘account receivable’ prevents contractors from obtaining interim financing by pledging accounts receivable, resulting in serious impediment to the financing of construction projects, creates an emergency and an imperative public necessity that the Constitutional Rule requiring - bills to be read on three several days in each House be suspended, and this Rule is hereby suspended, and that this Act take effect and be in force from and after its passage, and it is so enacted.” If the Assignment Act, as it existed at the time of the assignment from the subcontractor to the bank, is followed, the assignment held by the Security State Bank was not perfected because the assignment failed to describe the land on which the subcontractor was building, and the same was not recorded in the county where the land lies. The bank contends that the amendment to said Act in 1957 was unconstitutional because the caption of the Act did not authorize the amendment as finally passed, in violation of Article III, Section 35, of the Texas Constitution, Yernon’s Ann.St. It claims that since there is a variance between the title (or caption) and the subject of the Act, the same cannot be given validity because of the constitutional provision that the caption (or title) shall sufficiently give notice to members of the Legislature and the public of the provisions of the Act. With this contention, this Court cannot agree. There is no question that the purpose of the amendment was to"
},
{
"docid": "17667253",
"title": "",
"text": "by the execution and delivery by the assignor to the assignee of an instrument or instruments in writing, assigning such * * * accounts and describing * * * the accounts assigned with sufficient particularity to identify the same, and by the filing for record the ‘Notice of Assignment’ ” which shall contain the names and addresses of the assignor and assignee, a statement that the assignor has assigned or intends to assign one or more accounts to the named assignee, and a statement of the period of time for which such notice is to be effective. In Keeran v. Salley, 244 S.W.2d 663, 666, writ of error refused, the Court of Civil Appeals of Texas held: “The filing of the notice of assignment of July 14, 1949, does not give the bank a prior right to the fund impounded by the writ of garnishment for the reason that tne statute, Article 260-1, relating to assignment of accounts, defines the word ‘account’ or ‘account receivable’ as meaning ‘an existing or future right to the payment of money ;presently due, or to become due under an existing contract; * * The contract which gave rise to the ‘account’ here involved was obviously not in contemplation when the notice was executed.” This decision thus established the proposition that the filing of Notice of Assignment under Art. 260 — 1 protected only accounts which were in existence when the Notice was executed. This is dispositive of the issue here. Accordingly, we conclude that appellant did not acquire a valid lien on the disputed collections because none of the assignments of the accounts here involved was protected by the Notice of Assignment. We are also of opinion that appellant’s rights were inferior to those of the trustee because under the 1950 amendment to Section 60, sub. a (6) of the Bankruptcy Act, Congress provided that the recognition of equitable liens would be denied where, as here, available means of perfecting legal liens have not been employed. Consequently, under none of the assignments here at issue did the appellant acquire a lien on collections made"
},
{
"docid": "23445261",
"title": "",
"text": "26 A.B.A.J. 895 (1940). . For a discussion of the historical background on non-notification assignment of accounts receivable see M. M. Dandy, Inc., v. Nicholas, 5 Cir., 1955, 221 F.2d 928, 53 A.L.R.2d 1385, and Costello v. Bank of America Nat. Trust & Savings Ass’n, 9 Cir., 1957, 246 F.2d 807. As to the Texas Act, art. 260-1, Vernon’s Tex.Rev.Stat., see also 25 Tex.L.Rev. 606, 30 Tex.L.Rev. 233, 4 Baylor L.Rev. 392. See also, Koessler, Assignment of Accounts Receivable, 33 Cal.L.Rev. 40 (1945), and, New Legislation Affecting Non-Notification Financing of Accounts Receivable, 44 Mich.L.Rev. 563 (1946). . “In this Act, unless the context otherwise requires: (1) ‘Account’ or ‘account receivable’ means an existing or future right to the payment of money presently due, or to become due (a) under an existing contract * * Art. 260-1, § 1, Vernon’s Tex.Rev.Stat. . As to Keeran, see 31 Tex.L.Rev. 63. But to Texas Courts this case has lost none of its vitality, Scarborough, v. Victoria Bank & Trust Co., Tex.Civ.App. 1952, 250 S.W.2d 918, 920, error ref’d; Tezel & Cotter v. Roark, Tex.Civ.App. 1957, 301 S.W.2d 179, 180, error ref’d. See also National Surety Corp. v. United States, 1955, 183 F.Supp. 381, 385, 132 Ct.Cl. 724. In United States v. Phillips, 5 Cir., 1952, 198 F.2d 634, we bypassed, as we do here, the question whether Keeran overturned for Texas our decision in Second National Bank of Houston v. Phillips, 5 Cir., 1951, 189 F.2d 115. As to Vial, see Moore & Kupfer, Accounts Receivable — Current Developments, The Business Lawyer (A.B.A. Section on Corporation Banking and Business Law), reprinted in 75 Banking L.J. 105 (Feb. 1958). . The Texas 1955 Amendment and the Florida 1957 Amendment added to the clause “(a) under an existing contract” the following: “or under a future contract entered into during the effective period of the notice of assignment * * Tex.Sess.Laws 1955, c. 305, § 1, amending art. 260-1, Vernon’s Tex. Rev.Stat.; Fla.Sess.Laws 1957, c. 57-22, § 1, amending Fla.Stat.Ann. c. 524.01(1) (a). Its purpose was made doubly sure in Texas by the addition of the"
},
{
"docid": "23099432",
"title": "",
"text": "priorities whether by agreement, subrogation or common law or statute law. Article 24 (a) (b), Assignment of Eights, of the aforementioned General Contract, provides: (a) Claims for monies due or to become due the contractor from the Government under this contract may be assigned to a bank, trust company or other financing institution, including any Federal lending agency. Any such assignment shall cover all amounts payable under this contract and not already paid, and shall not be made to more than one party, except that any such assignment may be made to one party as agent or trustee for two or more parties participating in such financing. (b) In the event of any such assignment the as-signee shall file four signed copies of a written notice of the assignment, together with one copy of the instrument of assignment, with each of the following: (I)General Accounting Office. (II)The Contracting Officer. (Ill)The surety or sureties upon the bond or bonds, if any, in connection with this contract. (IV)The officer designated in this contract to make payments thereunder. 42. The pertinent provisions of Article 260-1 of the Texas Civil Statutes are set forth in finding 13. 43. Unpaid loans from Intervenor Bank to Thomas Bryan and Associates, Inc. were in existence at the time of said assignment set forth in finding 40, and other loans to Thomas Bryan and Associates, Inc. were made by Intervenor Bank but no loan was so made at the time said assignment was executed. 44. Neither the plaintiff nor the intervenor have made any assignment of their claims to the unexpended balance on said contract or the money due thereunder except to the extent that the facts stated in findings 45 and 46 may constitute an assignment by the plaintiff. 45. On February 9,1953, the United States District Court for the Southern District of New York made an order approving the compromise between the Fidelity and Deposit Company of Maryland, National Surety Corporation and John F. Lang, as Trustee of Thomas Bryan and Associates, Inc., bankrupt. 46. Pursuant to the above order, on February 9,1953, John F. Lang,"
},
{
"docid": "3959169",
"title": "",
"text": "that its assignment from the subcontractor was a protected assignment and was a choate interest; that its assignment was prior in time to the filing of the Government’s tax liens which are for a greater amount than the amount tendered into court. The amount due by the subcontractor to the Security State Bank is also in excess of the amount tendered. So a ruling on the priority of the liens as between the Bank and the Government will resolve the question of who is entitled to the money now in. court. There is no question that in order for the assignment held by the bank to be a valid assignment, it had to be taken under Article 260-1, Vernon’s Texas Civil Statutes. This was the same statute involved in the case of United States v. R. F. Ball Construction Co., Inc. et al., which is to be found in R. F. Ball Const. Co. v. Jacobs, D.C., 140 F.Supp. 60; 5 Cir., 239 F.2d 384, and 355 U.S. 587, 78 S.Ct. 442, 2 L.Ed.2d 510, as it existed before the 1957 amendment to the same. The pertinent part of said statute is Section 1(1) which reads as follows: “Section 1(1) ‘Account’ or ‘account receivable’ means an existing or future right to the payment of money presently due, or to become due (a) under an existing contract or under a future contract entered into during the effective period of the notice of assignment hereinafter provided for; (b) which right to payment is not secured by a chattel mortgage, a conditional sale contract, or other instrument which may be filed for record in a public office of this or another state or of the United States and which instrument was given at or before the time the account was assigned and reserves the title to, or creates a lien upon, goods, the sale of which gave rise to the account; and (c) which right to payment is not represented by (A) a judgment, (B) a negotiable instrument, or (C) a non-neg-otiable instrument which so represents the obligation that an assignee who takes"
},
{
"docid": "17667252",
"title": "",
"text": "to give an assignment is not sufficient for compliance with Art. 260-1, to-wit: they do not represent any existing or future right to receive the payment of money due or to become due under an existing contract as therein provided for. Said accounts were not created and did not come into existence until long after the date of the original assignment of August 18, 1953. Therefore, the same is not sufficient to be classed as a protected assignment permitted by Subdivision 3 of the said Art. 260-1.” On petition for review, the court being of opinion that the findings and conclusions of the referee were correct, affirmed the order, and this appeal followed. This brings us to the merits of the controversy. Article 260-1 of the Revised Civil Statutes of Texas in pertinent part provides that an account receivable “means an existing or future right to the payment of money presently due, or to become due (a) under an existing contract * * *.” It further provides that assignments of such accounts “may be protected by the execution and delivery by the assignor to the assignee of an instrument or instruments in writing, assigning such * * * accounts and describing * * * the accounts assigned with sufficient particularity to identify the same, and by the filing for record the ‘Notice of Assignment’ ” which shall contain the names and addresses of the assignor and assignee, a statement that the assignor has assigned or intends to assign one or more accounts to the named assignee, and a statement of the period of time for which such notice is to be effective. In Keeran v. Salley, 244 S.W.2d 663, 666, writ of error refused, the Court of Civil Appeals of Texas held: “The filing of the notice of assignment of July 14, 1949, does not give the bank a prior right to the fund impounded by the writ of garnishment for the reason that tne statute, Article 260-1, relating to assignment of accounts, defines the word ‘account’ or ‘account receivable’ as meaning ‘an existing or future right to the payment"
},
{
"docid": "23637771",
"title": "",
"text": "to wit, who has the superior equity, the surety or the bank. We recognize that the Fifth Circuit takes the contrary view in Coconut Grove Exchange Bank v. New Amsterdam Cas. Co., 149 F.2d 73, and General Cas. Co. of America v. Second Nat. Bank of Houston, 178 F.2d 679. 2. In the National Surety Co. case, the First National Bank in Houston also claims under an assignment executed under article 260-1 of Vernon’s Civil Statutes of the State of Texas. This assignment was executed on January 30, 1950. The contract in the National Surety Company case was entered into on September 1, 1950, and, hence, the statute relied upon is not applicable because it relates to the assignment of accounts due or to become due “under an existing contract.” This contract not having been in existence at the time of the assignment, amounts due under it are not covered by the assignment. It was so held by the Texas Court of Civil Appeals in Keeran v. Salley, 244 S.W.2d 663. The same thing was held by the United States District Court for New Jersey concerning a similar statute, in the case of Seaboard Surety Co. v. State of North Dakota, 94 F.Supp. 177. The surety’s assignment was by operation of law, which does not appear to be covered by the Texas statute. In the Fidelity and Deposit Company of Maryland ease, the bank relies also upon the assignment executed under article 260-1 of Vernon’s Civil Statutes of the State of Texas. That contract was executed prior to the assignment and, hence, accounts due under the contract would have been covered by the assignment, but the surety’s rights arose when the contract with the United States was signed, which was prior to the assignment to the bank and, hence, the surety’s rights are superior. 3. The bank says that the sureties are claiming only as the assignees of the trustee in bankruptcy of the contractor, Thomas Bryan & Associates, Inc., and that, therefore, they are entitled to recover only if the contractor is entitled to recover, and it says that"
},
{
"docid": "23099396",
"title": "",
"text": "F. 2d 679. 2. In the National Surety Company case, the First National Bank in Houston also claims under an assignment executed under article 260-1 of Vernon’s Civil Statutes of the State of Texas. This assignment was executed on January 30, 1950. The contract in the National Surety Company case was entered into on September 1, 1950, and, hence, the statute relied upon is not applicable because it relates to the assignment of accounts due or to become due “under an existing contract.” This contract not having been in existence at the time of the assignment, amounts due under it are not covered by the assignment. It was so held by the Texas Court of Civil Appeals in Kieran v. Salley, 244 S. W. 2d 663. The same thing was held by the United States District Court for New Jersey concerning a similar statute, in the case of Seaboard Surety Co. v. State of North Dakota, 94 F. Supp. 177. The surety’s assignment was by operation of law, which does not appear to be covered by the Texas statute. In the Fidelity and Deposit Company of Maryland case, the bank relies also upon the assignment executed under article 260-1 of Vernon’s Civil Statutes of the State of Texas. That contract was executed prior to the assignment and, hence, accounts due under the contract would have been covered by the assignment, but the surety’s rights arose when .the. contract with the United States was signed, which was prior to the assignment to the- bank and, hence, the surety’s .rights are superior. 3. The bank says that the sureties are claiming only as the assignees of the trustee in bankruptcy of the contractor, Thomas Bryan & Associates, Inc., and that, therefore, they are entitled to recover only if the contractor is entitled to recover, and it says that the contractor is not entitled to recover as against the bank because of its assignment to the bank. This is in error. The trustee in bankruptcy did assign “all claim and right to the balance on the above contract to National Surety Corporation and"
},
{
"docid": "17667251",
"title": "",
"text": "an original written assignment of accounts receivable of date August 18, 1953, as permitted by Art. 260-1 R.S. of Texas, relating to assignments, of accounts receivable, but which original assignment has never been filed of record in Dallas County, Texas; “(b) That notice of intention to make an assignment of assignor’s accounts to assignee was executed and delivered to the Bank on August 18, 1953, and this notice of intention to give an assignment was filed of record at Dallas County, Texas on September 3, 1953. That within four months prior to the date of bankruptcy the assignee, Republic National Bank collected and received payment upon said accounts receivable amounting to the sum of $11,142.83. That during the said period the Bank had reasonable cause to believe that the assignor was insolvent and the accounts were given to secure a pre-existing debt owing by the bankrupt to the Republic National Bank. “That the original assignment of date August 18, 1953, was delivered .to the Bank * * * and the assignment together with the intention to give an assignment is not sufficient for compliance with Art. 260-1, to-wit: they do not represent any existing or future right to receive the payment of money due or to become due under an existing contract as therein provided for. Said accounts were not created and did not come into existence until long after the date of the original assignment of August 18, 1953. Therefore, the same is not sufficient to be classed as a protected assignment permitted by Subdivision 3 of the said Art. 260-1.” On petition for review, the court being of opinion that the findings and conclusions of the referee were correct, affirmed the order, and this appeal followed. This brings us to the merits of the controversy. Article 260-1 of the Revised Civil Statutes of Texas in pertinent part provides that an account receivable “means an existing or future right to the payment of money presently due, or to become due (a) under an existing contract * * *.” It further provides that assignments of such accounts “may be protected"
},
{
"docid": "23445262",
"title": "",
"text": "Tezel & Cotter v. Roark, Tex.Civ.App. 1957, 301 S.W.2d 179, 180, error ref’d. See also National Surety Corp. v. United States, 1955, 183 F.Supp. 381, 385, 132 Ct.Cl. 724. In United States v. Phillips, 5 Cir., 1952, 198 F.2d 634, we bypassed, as we do here, the question whether Keeran overturned for Texas our decision in Second National Bank of Houston v. Phillips, 5 Cir., 1951, 189 F.2d 115. As to Vial, see Moore & Kupfer, Accounts Receivable — Current Developments, The Business Lawyer (A.B.A. Section on Corporation Banking and Business Law), reprinted in 75 Banking L.J. 105 (Feb. 1958). . The Texas 1955 Amendment and the Florida 1957 Amendment added to the clause “(a) under an existing contract” the following: “or under a future contract entered into during the effective period of the notice of assignment * * Tex.Sess.Laws 1955, c. 305, § 1, amending art. 260-1, Vernon’s Tex. Rev.Stat.; Fla.Sess.Laws 1957, c. 57-22, § 1, amending Fla.Stat.Ann. c. 524.01(1) (a). Its purpose was made doubly sure in Texas by the addition of the italicized portions to article 260-1, § 4: “Such notice of assignment shall bo effective for a definite period of time to be stated therein, not to exceed a period of three (3) years, and such notice shall protect the assignment of accounts which arise during sueh effective period and which originate out of existing or future contracts, and are assigned l>y assignor to assignee at any time during such three (3) year period, regardless of whether such account was in the contemplation of the assignor and as-signee when sueh notice was executed.\" Art. 260-1, § 4, Vernon’s Tex.Rev.Stat. as amended Tex.Sess.Laws 1955, c. 305, §1. . “524.04 Protected assignments “(1) A written assignment for value, signed by the assignor, becomes protected at the time the assignee: (a) Piles a notice of assignment after taking an assignment or (b) Takes an assignment during the effective period of the notice. “(2) A protected assignee takes subject to: (a) Judicial liens on the account at the time his assignment became protected; (b) An assignment to another person which"
},
{
"docid": "3959168",
"title": "",
"text": "stopping payment on the same. Uhlhorn, after stopping payment on said check of $4,977.00, on the advice of the subcontractor and with its consent, paid G & G Lumber Company the sum of $439.30, resulting in the amount which he has tendered into Court. The mechanics’ liens of Valley Ready-Mix Company, Damacio Reyna and Rolando Munoz, even if treated as mechanics’ liens, have not been perfected and reduced to judgment, and therefore are inchoate and not superior to the claim of the Government; and since the amount involved is less than that claimed by the Government, they are out of the case as far as the funds in court are concerned. The same holds true for the claim of the State of Texas; and as far as the money in court is concerned, the State of Texas does not have any right to the same. That leaves for disposal the controversy between Security State Bank of Pharr, Texas, and the Government, as to the priority of their liens. Security State Bank has taken the position that its assignment from the subcontractor was a protected assignment and was a choate interest; that its assignment was prior in time to the filing of the Government’s tax liens which are for a greater amount than the amount tendered into court. The amount due by the subcontractor to the Security State Bank is also in excess of the amount tendered. So a ruling on the priority of the liens as between the Bank and the Government will resolve the question of who is entitled to the money now in. court. There is no question that in order for the assignment held by the bank to be a valid assignment, it had to be taken under Article 260-1, Vernon’s Texas Civil Statutes. This was the same statute involved in the case of United States v. R. F. Ball Construction Co., Inc. et al., which is to be found in R. F. Ball Const. Co. v. Jacobs, D.C., 140 F.Supp. 60; 5 Cir., 239 F.2d 384, and 355 U.S. 587, 78 S.Ct. 442, 2 L.Ed.2d 510,"
}
] |
12518 | seems to turn on whether the amendment is made under Rule 13(f) or Rule 15(a) because using the latter provision’s permissive approach would permit the counterclaim to be added in almost every case under Rule 13(f).”)). Rule 15(a) instructs that “[t]he court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a). This language “evinces a bias in favor of granting leave to amend.” Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 994 (5th Cir.2005) (quoting Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 286 (5th Cir.2002)) (internal quotations omitted). Although a court “should freely give leave when justice so requires” under Rule 15(a), leave to amend “is not automatic.” REDACTED Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir.1981)). The decision “lies within the sound discretion of the district court.” Little v. Liquid Air Corp., 952 F.2d 841, 845-46 (5th Cir.1992). A district court reviewing a motion to amend pleadings under Rule 15(a) may consider factors such as “whether there has been ‘undue delay, bad faith or dilatory motive ..., undue prejudice to the opposing party, and futility of amendment.’ ” Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir.1998) (quoting In re Southmark Corp., 88 F.3d 311, 314-15 (5th Cir.1996)). Cammarata asserts that the delay in filing his counterclaim for attorney’s fees under § 15.51(c) “was nothing more than oversight and inadvertence, owing in large part | [
{
"docid": "7103687",
"title": "",
"text": "defendants Matagorda Ventures and Watch Wholesalers. The proposed fourth amended complaint seeks to add Watch Wholesalers as a plaintiff in the present litigation. (Docket Entry Nos. 55, 56). Federal Rule of Civil Procedure 15(a) provides that leave to amend pleadings “shall be freely given when justice so requires.” Although Rule 15 “evinces a bias in favor of granting leave to amend,” it is not automatic. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981); Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir.1993). In deciding whether to grant leave to file an amended pleading, the district court may consider such factors 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, and futility of amendment. See Wimm, 3 F.3d at 139 (citations omitted). Each of the additional causes of action in the proposed third amended complaint stems from Travelers’ allegedly wrongful failure to defend or indemnify plaintiffs in the Movado Group lawsuit. The proposed third amended complaint adds claims of breach of extra-contractual duties arising from the same facts alleged as the basis of the alleged breaches of contract asserted in the second amended complaint. Under Texas law, extra-contractual tort claims under the Texas Insurance Code and the DTPA reqúire a showing that an insurer breached a duty of good faith and fair dealing. See Lawson v. Potomac Ins. Co., 1998 WL 641809 at *4 (N.D.Tex. Sept.14, 1998) (citing Higginbotham v. State Farm Mut. Auto. Ins. Co., 103 F.3d 456, 460 (5th Cir.1997)). An insurer “breaches its duty of good faith and fair dealing by denying a claim when the insurer’s liability has become reasonably clear.” State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 44 (Tex.1998). Travelers’ liability to defend the Movado Group lawsuit was not “reasonably clear.” Plaintiffs’ proposed claim of negligent misrepresentation is also without merit. In order for a tort duty to arise out of a contractual duty, in this case, negligent failure to perform a contract, the tort"
}
] | [
{
"docid": "23146374",
"title": "",
"text": "omitted). Although the Herrmanns purport to set out circumstances indicating Lucent’s conscious behavior, they only point to allegations that Lucent breached its obligations under the Agreement, which are inadequate, standing alone, to support an inference of fraudulent intent. Considering all of the allegations in their complaint, we find that the Herrmanns have failed to set forth specific facts sufficient to indicate conscious behavior on the part of Lucent. Because we conclude that the Herrmanns have failed to adequately plead fraudulent intent under Rule 9(b), we hold that the district court did not err in dismissing their securities fraud claim for failure to plead fraud with particularity. V. Leave to Amend The Herrmanns’ argue in the alternative that the district court abused its discretion in denying them leave to amend their complaint to correct any deficiency. The sum of the Herrmanns’ request for leave to amend was the following footnote at the end of their response to the motion to dismiss: “The Herrmanns’ pleadings are more than sufficient to withstand Lucent’s motion to dismiss. If the Court disagrees, the Herrmanns respectfully request that the Court treat Lucent’s motion as a motion for a more definite statement and give the Herrmanns an opportunity to replead.” Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely granted when justice so requires.” Fed. R. Civ. P. 15(a). Rule 15(a) “evinces a bias in favor of granting leave to amend.” Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir.1981). In sum, the district court must have a “substantial reason” to deny a request for leave to amend. Id. Toward that end, the district court may consider factors such as whether there has been “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, and futility of amendment.” Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir.1998). The district court denied the Herrmanns’ request for leave to amend, concluding that “[although plaintiffs should ordinarily be offered an opportunity to amend if"
},
{
"docid": "137068",
"title": "",
"text": "claim under the Massachusetts Wage Act for attorney’s fees and treble damages. The district court denied Smith’s motions. Smith timely appeals. II. STANDARD OF REVIEW This Court reviews a district court’s decision to deny leave to amend for abuse of discretion. United States ex rel. Adrian v. Regents of Univ. of Cal., 363 F.3d 398, 403 (5th Cir.2004). A district court’s choice-of-law determination is reviewed de novo. Spence v. Glock, Ges. m.b.H., 227 F.3d 308, 311 (5th Cir.2000). III. DISCUSSION A. Denial of Smith’s Motion for Leave to Amend a Fraud Claim Smith contends that the district court erred in denying his motion to amend a fraud claim both because 1) the district court lacked any valid reason to do so under Federal Rule of Civil Procedure 15(a); and 2) the parties tried the fraud claim by consent under Federal Rule of Civil Procedure 15(b), The district court did not abuse its discretion in denying Smith’s motion under either subsection of Rule 15. 1. Federal Rule of Civil Procedure 15(a) Rule 15(a) requires a trial court “to grant leave to amend ‘freely,’ and the language of this rule ‘evinces a bias in favor of granting leave to amend.’ ” Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir.2002) (quoting Chitimacha Tribe of La. v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1162 (5th Cir.1982)). A district court must possess a “substantial reason” to deny a request for leave to amend. Id. (quoting Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir.1985)). However, decisions concerning motions to amend are “entrusted to the sound discretion of the district court.... ” Quintanilla v. Tex. Television, Inc., 139 F.3d 494, 499 (5th Cir.1998) (quoting Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir.1993)). As outlined by the Supreme Court, this Circuit examines five considerations to determine whether to grant a party leave to amend a complaint: 1) undue delay, 2) bad faith or dilatory motive, 3) repeated failure to cure deficiencies by previous amendments, 4) undue prejudice to the opposing party, and 5) futility of the amendment. Rosenzweig"
},
{
"docid": "23166982",
"title": "",
"text": "charge of handling the accounts rather than severe recklessness by Ebbers and Sullivan individually, we uphold the dismissal of the complaint by the district court. IV. ANALYSIS OF THE PLAINTIFFS’ REQUEST TO AMEND At the end of their responsive briefing to the defendants’ motion to dismiss, the plaintiffs requested leave of the district court to amend their complaint. In full, this general request states: Should this Court find that the Complaint is insufficient in any way, however, plaintiffs respectfully request leave to amend. The Fifth Circuit recognizes that leave to amend shall be freely given when justice so requires. Moreover, “although the decision whether to grant leave rests within the sound discretion of the district court,” the federal rules strongly favor granting leave to amend. Indeed virtually all of the cases relied on by defendants allowed plaintiffs to amend following a 12(b)(6) dismissal, (internal citations and footnote omitted). Finding that the request was “not well taken” and that the plaintiffs “have had ample opportunity to plead their case,” the district court denied the plaintiffs’ request. We uphold this denial. In discussing a district court’s discretion to deny a litigant leave to amend under Federal Rule of Civil Procedure 15(a), we have concluded that this “discretion is limited because Rule 15 evinces a bias in favor of granting leave to amend.” S. Constructors Group, Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir.1993); Little v. Liquid Air Corp., 952 F.2d 841, 846 (5th Cir.1992). However, we have also stated that leave to amend under Rule 15 is by no means automatic. S. Constructors, 2 F.3d at 612. Indeed, we have upheld the denial of leave to amend when the moving party engaged in undue delay, Little, 952 F.2d at 846, or attempted to present theories of recovery seriatim to the district court. S. Constructors, 2 F.3d at 612. Additionally, the Supreme Court has sanctioned 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, or futility of"
},
{
"docid": "4477433",
"title": "",
"text": "(1) it arises out of the transaction constituting the subject matter of the Plaintiff’s Complaint (¶ 1); (2) CARNEHAMMAR represented to BOOK that he was acting legally and properly (¶ 3); (3) BOOK relied on these representations (114); and (4) CARNEHAMMAR is liable to BOOK for all damages for which BOOK may be liable (11 5). Accordingly, the Defendant’s Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted (DE 104) is GRANTED and the Crossclaim is DISMISSED WITHOUT PREJUDICE with leave to amend. BOOK shall have ten (10) days from the date of this order in which file an Amended Cross-claim. 138 F.R.D. — 22 MOTION FOR LEAVE TO AMEND ANSWER AND COUNTERCLAIMS Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend its pleading only by leave of court or by written consent of the adverse party; and that “leave shall be freely given when justice so requires.” The discretion to grant leave to amend is within the sound discretion of the trial court and is not automatic. National Service Industries, Inc. v. Vafla Corp., 694 F.2d 246 (11th Cir. 1982). “[T]he district court must take into account several factors ‘such as undue delay, bad faith or dilatory motive on the part of the movant,’ ... undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment.” Bamm, Inc. v. GAF Corp., 651 F.2d 389, 391 (5th Cir.1981), (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)). Rule 13(f) of the Federal Rules of Civil Procedure governs the amendment of counterclaims. That Rule provides: (f) Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment. In deciding whether to grant leave to add an omitted counterclaim under Rule 13(f), the same liberal standards under Rule 15(a) are also applicable. T.J. Stevenson & Co., Inc. v. 81,193 Bags of Flour, 629 F.2d"
},
{
"docid": "1531081",
"title": "",
"text": "cure any deficiencies. The district court denied REI’s request for leave to amend its complaint for a fifth time and granted First American’s motion to dismiss. REI contends the district court erred by denying its request to amend. We review “a district court’s denial of leave to amend a complaint for abuse of discretion.” Ashe v. Corley, 992 F.2d 540, 542 (5th Cir.1993) (citation omitted). “The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). In deciding whether to allow an amendment, a district court “may consider such factors 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, and futility of amendment.” Matter of Southmark Corp., 88 F.3d 311, 314-15 (5th Cir.1996). REI was afforded the opportunity to perfect service on First American after filing its third amended complaint, but did not. REI then filed a fourth amended complaint omitting First American and again failing to perfect service. The district court did not abuse its discretion in denying leave to amend. V. Sua Sponte Dismissal of Claims REI challenges the sua sponte dismissal of its remaining claims. By ruling on a series of motions to dismiss, the district court dismissed claims against a number of defendants. The district court then sua sponte dismissed those same claims against other defendants. The court explained that REI had alleged the same 15 claims disposed of by its previous order against many of the remaining defendants, and that to the extent those same claims were alleged, the court dismissed them with prejudice against the remaining defendants consistent with that order. Following that same approach, the district court dismissed all remaining claims sua sponte in a subsequent order. A district court’s sua sponte dismissal is reviewed de novo. White v. Johnson, 429 F.3d 572, 573 (5th Cir.2005). A district court has authority to dismiss a complaint on its own motion for failure to state a claim. Carroll v. Fort James Corp., 470 F.3d 1171, 1177 (5th Cir.2006). The district court may dismiss sua"
},
{
"docid": "23146375",
"title": "",
"text": "Court disagrees, the Herrmanns respectfully request that the Court treat Lucent’s motion as a motion for a more definite statement and give the Herrmanns an opportunity to replead.” Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely granted when justice so requires.” Fed. R. Civ. P. 15(a). Rule 15(a) “evinces a bias in favor of granting leave to amend.” Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir.1981). In sum, the district court must have a “substantial reason” to deny a request for leave to amend. Id. Toward that end, the district court may consider factors such as whether there has been “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, and futility of amendment.” Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir.1998). The district court denied the Herrmanns’ request for leave to amend, concluding that “[although plaintiffs should ordinarily be offered an opportunity to amend if it appears that a more carefully drafted complaint might state claims upon which relief could be granted, that course need not be followed here since plaintiffs have already twice amended their complaint.” (internal citations omitted). We perceive no abuse of discretion in this reasoning. Cf Price v. Pinnacle Brands Inc. 138 F.3d 602, 608 (5th Cir.1998) (holding that denial of leave to amend a complaint asserting a civil claim under the Racketeer Influenced and Corrupt Organizations Act (RICO) to permit correction of a deficiency was not an abuse of discretion when the plaintiffs had three opportunities to articulate their damage theory adequately-the complaint, the RICO ease statement, the brief in response to the motion to dismiss-and failed to do so, making it unfair to subject defendant to further costs of litigation); Jacquez v. Procurer, 801 F.2d 789, 793 (5th Cir.1986) (“At some point a court must decide that a plaintiff has had fair opportunity to make his case; if, after that time, a cause of action has not been established, the court should finally dismiss"
},
{
"docid": "23247782",
"title": "",
"text": "could not withstand a motion to dismiss, we review a district court’s denial of leave to amend for abuse of discretion. Monette v. Elect. Data Sys. Corp., 90 F.3d 1173, 1188 (6th Cir.1996). Similarly, we review an order denying a motion to alter or amend a judgment under Rule 59(e) for abuse of discretion, unless such motion seeks review of a legal conclusion. Perez v. Aetna Life Ins. Co., 150 F.3d 550, 554 (6th Cir.1998) (en banc); see also Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir.1998). Where a timely motion to amend judgment is filed under Rule 59(e), the Rule 15 and Rule 59 inquiries turn on the same factors. Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 272 (3d Cir.2001); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 n. 1 (5th Cir.1981). In denying leave to amend, abuse of discretion may occur when a district court does not state the basis for its denial or fails to consider the competing interests of the parties and likelihood of prejudice to the opponent. Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir.1986). Generally, leave to amend is “freely given when justice so requires.” Keweenaw Bay Indian Cmty. v. State of Michigan, 11 F.3d 1341, 1348 (6th Cir.1993) (quoting Fed.R.Civ.P. 15(a)). In the securities litigation context, leave to amend is particularly appropriate where the complaint does not allege fraud with particularity. E.g., Chill v. Gen. Elect. Co., 101 F.3d 263, 271 (2d Cir.1996). Denial may be appropriate, however, where there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also 3 Moore’s Federal Practice § 15.14[1] (3d ed.1997). Ordinarily, delay alone, does not justify denial of leave to amend. Sec. Ins. Co. v. Kevin Tucker & Assocs., Inc., 64 F.3d 1001, 1009"
},
{
"docid": "3840603",
"title": "",
"text": "leave to amend. Plaintiffs-Appellants argue that because the motion for leave to amend was the first time they sought amendment of the complaint and the amendment was filed within the scheduling order deadline, the district court abused its discretion in denying their motion as moot -without providing reasons for doing so. We agree. We “review[] a district court’s denial of leave to amend a complaint for abuse of discretion.” Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1464 (5th Cir. 1995). Federal Rule of Civil Procedure 15(a) states that the district “court should freely give leave [to amend] when justice so requires.” “[T]he language of this rule ‘evinces a bias in favor of granting leave to amend,’” and “[a] district court must possess a ‘substantial reason’ to deny a request.” Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004) (citation omitted). A district court should “examine[] five considerations to determine whether to grant a party leave to amend a complaint: 1) undue delay, 2) bad faith or dilatory motive, 3) repeated failure to cure deficiencies by previous amendments, 4) undue prejudice to the opposing party, and 5) futility of the amendment.” Id. (citations omitted). Moreover, “[g]iven the policy of liberality behind Rule 15(a), it is apparent that when a motion to amend is not even considered, much less not granted, an abuse of discretion has occurred.” Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 245-46 (5th Cir. 1997) (quoting Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987)). Notwithstanding our strong preference for explicit reasoning for denial of a motion to amend, “when the justification for the denial is ‘readily apparent,’ a failure to explain ‘is unfortunate but not fatal to affirmance if the record reflects ample and obvious grounds for denying leave to amend.’” Marucci Sports, LLC v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014) (quoting Mayeaux v. La. Health Serv. & Indem. Co,, 376 F.3d 420, 426 (5th Cir. 2004)). As noted, the district court stated—without providing reasons—that the motion for leave to"
},
{
"docid": "4031917",
"title": "",
"text": "Law “Rule 15(a) requires a trial court to grant leave to amend freely, and the language of this rule evinces a bias in favor of granting leave to amend.” Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 994 (5th Cir.2005) (citation and internal quotation marks omitted). Leave to amend is in no way automatic, but the district court must possess a “substantial reason” to deny a party’s request for leave to amend. Id. (citation and internal quotation marks omitted). The district court is entrusted with the discretion to grant or deny a motion to amend and may consider a variety of factors including “undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ..., and futility of the amendment.” Id. (citation omitted). “In light of the presumption in favor of allowing pleading amendments, courts of appeals routinely hold that a district court’s failure to provide an adequate explanation to support its denial of leave to amend justifies reversal.” Mayeaux v. La. Health Serv. and Indent. Co., 376 F.3d 420, 426 (5th Cir.2004) (citation omitted). However, when the justification for the denial is “readily apparent,” a failure to explain “is unfortunate but not fatal to affirmance if the record reflects ample and obvious grounds for denying leave to amend.” Id. (citation and internal quotation marks omitted). Denying a motion to amend is not an abuse of discretion if allowing an amendment would be futile. Briggs v. Miss., 331 F.3d 499, 508 (5th Cir.2003). An amendment is futile if it would fail to survive a Rule 12(b)(6) motion. Id. Therefore, we review the proposed amended complaint under “the same standard of legal sufficiency as applies under Rule 12(b)(6).” Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir.2000) (citation internal and quotation marks omitted). 3.Analysis The district court afforded Marucci two opportunities to amend its complaint. These amendments did not cure what is likely incurable — Marucci’s inability to allege sufficient facts showing that the BBCOR Standard injures competition in the"
},
{
"docid": "22574472",
"title": "",
"text": "Osborne without prejudice was granted. II. Contending that the magistrate judge abused his discretion by denying the motion to amend, Jacobsen asserts that it was neither untimely nor futile because the claims were not time-barred. (To shore up his timeliness claim, Jacobsen notes that no trial date had been fixed when the motion to amend was filed, and that leave was later granted to add the officers for the state law claims.) In the alternative, he claims that, under Rule 15(c), the amended complaint relates back to the date of the original filing. The denial of a Rule 15(a) motion to amend is reviewed for abuse of discretion. E.g., Moody v. FMC Corp., 995 F.2d 63, 65 (5th Cir.1993). Likewise, whether to grant such a motion is committed to the sound discretion of the district court, e.g, Shivangi v. Dean Witter Reynolds, Inc., 825 F.2d 885, 890 (5th Cir.1987); but, that discretion is limited by Rule 15(a), which states that “leave shall be given when justice so requires”. Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir.1994). In sum, the motion should not be denied “unless there is a substantial reason to do so”. Id. Toward that end, the district court may consider factors such as whether there has been “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, and jfutility of amendment”. In re Southmark Corp., 88 F.3d 311, 314-15 (5th Cir.1996)(emphasis added), cert. denied, — U.S. -, 117 S.Ct. 686, 136 L.Ed.2d 611 (1997). A. The magistrate judge ruled, inter alia, that the motion to amend, filed over two years after the incident, was futile because the claims against the officers and deputies had prescribed. Of course, for a § 1983 action, the court looks to the forum state’s personal-injury limitations period. E.g., Moore v. McDonald, 30 F.3d 616, 620 (5th Cir.1994). In Louisiana, that period is one year. Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir.1989). On the other hand, federal law determines when"
},
{
"docid": "22606304",
"title": "",
"text": "before the first trial. Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings. That rule allows a party to amend his pleading only once as a matter of course; however, it also provides that “[otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” (emphasis added). A district court thus has discretionary power to grant leave to amend a complaint, and our power to reverse a district court’s decision to deny leave is limited to cases in which the district court has abused its discretion. Daly v. Sprague, 675 F.2d 716, 722-23 (5th Cir. 1982); Daves v. Payless Cash ways, Inc., 661 F.2d 1022, 1025 (5th Cir. 1981); Bamm, Inc. v. GAF Corp., 651 F.2d 389, 391 (5th Cir. 1981). We review a district court’s denial of leave to amend in light of the policy embodied of the federal rules freely to permit amendments to complaints. As we noted in Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 598 (5th Cir. 1981), Rule 15 “evinces a bias in favor of granting leave to amend. . . . Thus, unless there is a substantial reason to deny leave to amend, the discretion of the district court is not broad enough to permit denial.” The Supreme Court in Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), enumerated some of the reasons that might justify a district court’s refusal to allow amendment. These reasons include “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 the allowance of the amendment, futility of amendment, etc.” We have uniformly applied this standard in reviewing district court decisions denying leave to amend. See, e.g., Daves v. Payless Cashways, Inc., 661 F.2d at 1024; Bamm, Inc. v. GAF Corp., 651 F.2d at 391; Dussouy v. Gull Coast Investment Corp., 660 F.2d at 598. The district court"
},
{
"docid": "18375364",
"title": "",
"text": "and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A court has discretion in deciding whether to grant leave to amend. Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Since the language of the rule \"“ ‘evinces a bias in favor of granting leave to amend,” the court must find a “substantial reason” to deny such a request. Ambulatory Infusion Therapy Specialists, Inc. v. Aetna Life Ins. Co., Civ. A. No. H-05-4389, 2006 WL 2521411, *3 (S.C.Tex. Aug. 29, 2006), quoting Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir.2004), and Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir.2004). Factors for the court to consider in determining whether a substantial reason to deny a motion for leave to amend include “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previous ly allowed, undue prejudice to the opposing party, and futility of amendment.” Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir.1993). While Rule 15(a) does not establish a time limit for filing a motion for leave to amend, “ ‘at some point, time delay on the part of a plaintiff can be procedurally fatal.’” Smith v. EMC Corp., 393 F.3d at 595, quoting Whitaker v. City of Houston, 963 F.2d 831, 836 (5th Cir.1992), in turn quoting Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir.1981). If there is substantial delay, the plaintiff bears the burden of demonstrating that it was due to oversight, inadvertence or excusable neglect, Id., citing Gregory, 634 F.2d at 203. Where the proposed new claims are time-barred, allowing amendment is futile. Williams v. Simmons, 185 F.Supp.2d 665, 674 (N.D.Tex.2001); Columbraria Ltd. v. Pimienta, 110 F.Supp.2d 542, 549 (S.D.Tex.2000). 2. Inquiry"
},
{
"docid": "11489773",
"title": "",
"text": "to patent law, we apply the law of the regional circuit. McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1357 (Fed. Cir.2001) (“A district court’s decision to grant or deny a motion for leave to join a party involves a procedural question that raises no special issues relating to patent law, and therefore [regional circuit] law applies.”); Datascope Corp. v. SMEC, Inc., 962 F.2d 1043, 1045 (Fed.Cir.1992) (Regional circuit law determines “the standard for determining whether the district court abused its discretion in denying [the patentee] leave to amend” its complaint to add a new party.). Rule 15(a) provides that a party may amend its pleadings “only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Fed. R.Civ.P. 15(a). Rule 21 states that “parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” Fed.R.Civ.P. 21. In applying Rule 21, the court is governed by the liberal amendment standards of Rule 15(a). See McLellan v. Miss. Power & Light, 526 F.2d 870, 873 (5th Cir.1976). The decision to grant or deny a motion for leave to amend thus lies within the sound discretion of the trial court. Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir.1998); Datascope Corp., 962 F.2d at 1045. The Fifth Circuit has stated that leave should be granted “in the absence of any apparent or declared reason — 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, [or] futility of amendment.” Jacobsen, 133 F.3d at 318. The district court exercised its discretion in this case fully aware of plaintiffs’ alleged misrepresentation in the 1994 joint motion and determined that defendants would suffer no prejudice were Insituform Netherlands joined as a party. District Court Opinion, slip op. at 21-22. We discern no abuse"
},
{
"docid": "137069",
"title": "",
"text": "court “to grant leave to amend ‘freely,’ and the language of this rule ‘evinces a bias in favor of granting leave to amend.’ ” Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir.2002) (quoting Chitimacha Tribe of La. v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1162 (5th Cir.1982)). A district court must possess a “substantial reason” to deny a request for leave to amend. Id. (quoting Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir.1985)). However, decisions concerning motions to amend are “entrusted to the sound discretion of the district court.... ” Quintanilla v. Tex. Television, Inc., 139 F.3d 494, 499 (5th Cir.1998) (quoting Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir.1993)). As outlined by the Supreme Court, this Circuit examines five considerations to determine whether to grant a party leave to amend a complaint: 1) undue delay, 2) bad faith or dilatory motive, 3) repeated failure to cure deficiencies by previous amendments, 4) undue prejudice to the opposing party, and 5) futility of the amendment. Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir.2003) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Absent any of these factors, the leave sought should be “freely given.” Foman, 371 U.S. at 182, 83 S.Ct. 227. The district court correctly denied Smith’s motion based on his undue delay in filing the motion to amend, as well as the proposed amendment’s undue prejudice to EMC. a. Undue delay Although “ ‘it is generally true that leave to file amendments should be freely given, amendments should be tendered no later than the time of pretrial, unless compelling reasons why this could not have been done are presented.’ ” Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1562 (5th Cir.1985) (quoting Nevels v. Ford Motor Co., 439 F.2d 251, 257 (5th Cir.1971)) (citation omitted). Although Rule 15(a) does not impose a time limit “for permissive amendment, ‘at some point, time delay on the part of a plaintiff can be procedurally fatal.’ ” Whitaker v. City of Houston, 963 F.2d 831,"
},
{
"docid": "4031916",
"title": "",
"text": "presumption. We are not permitted to, nor are we inclined to accept Marucci’s conclusory assertion — that the BBCOR Standard was created and implemented to protect the Incumbent Manufacturers — as true. Accordingly, we hold that Marucci did not state a claim upon which relief could be granted and the district court properly dismissed its Sherman Act claim. B. Marucci’s Motion to Amend its Second Amended Complaint We now turn to Marucci’s argument that it should have been granted a third opportunity to remedy the defects of its complaint. Marucci filed, and the district court granted, two motions to amend its complaint. Marucci later moved to amend its complaint for a third time. The district court denied this motion without providing reasons for the denial. Marucci argues that the district court erred by denying its motion to amend its Second Amended Complaint. 1. Standard of Review The district court’s denial of Marucci’s motion to amend is reviewed for abuse of discretion. Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir.2003). 2. Applicable Law “Rule 15(a) requires a trial court to grant leave to amend freely, and the language of this rule evinces a bias in favor of granting leave to amend.” Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 994 (5th Cir.2005) (citation and internal quotation marks omitted). Leave to amend is in no way automatic, but the district court must possess a “substantial reason” to deny a party’s request for leave to amend. Id. (citation and internal quotation marks omitted). The district court is entrusted with the discretion to grant or deny a motion to amend and may consider a variety of factors including “undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ..., and futility of the amendment.” Id. (citation omitted). “In light of the presumption in favor of allowing pleading amendments, courts of appeals routinely hold that a district court’s failure to provide an adequate explanation to support its denial of leave to amend"
},
{
"docid": "4477434",
"title": "",
"text": "court and is not automatic. National Service Industries, Inc. v. Vafla Corp., 694 F.2d 246 (11th Cir. 1982). “[T]he district court must take into account several factors ‘such as undue delay, bad faith or dilatory motive on the part of the movant,’ ... undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment.” Bamm, Inc. v. GAF Corp., 651 F.2d 389, 391 (5th Cir.1981), (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)). Rule 13(f) of the Federal Rules of Civil Procedure governs the amendment of counterclaims. That Rule provides: (f) Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment. In deciding whether to grant leave to add an omitted counterclaim under Rule 13(f), the same liberal standards under Rule 15(a) are also applicable. T.J. Stevenson & Co., Inc. v. 81,193 Bags of Flour, 629 F.2d 338 (5th Cir. Unit A 1980). In this instance, ALBER and CARNE-HAMMAR each seek to file an Amended Answer and Counterclaims which adds two additional affirmative defense and one additional counterclaims. The Plaintiff not having opposed the Defendants’ Motions and no prejudice having been shown, the Motion of Alber Corporation (U.S.A.) for Leave to Amend Answer (DE 199) and Motion of Bertil Carnehammar for Leave to Amend Answer and Counterclaims (DE 200) are GRANTED. POSTPONEMENT OF TRIAL AND SPECIAL TRIAL SETTING By order dated January 10, 1991, the trial of this cause was set for the two week period commencing July 15, 1991. In his Motion for Postponement of Trial and for Special Trial Setting (DE 195), CARNE-HAMMAR seeks a postponement of this date and request that the trial be specially set so that notice and appropriate travel arrangements may be made for numerous out of town witnesses. Although there are inherent difficulties associated with having out of town witnesses appear under short notice, the large volume of criminal cases currently on the docket in"
},
{
"docid": "8129696",
"title": "",
"text": "a strong inference of scienter against each easier to follow. Outside Directors in their reply vociferously object to “Plaintiffs’ unauthorized effort to amend their Complaint, in their Response, by adding close to sixty pages of new allegations” and “nearly thirty new factual exhibits,” # 909 at 2 n. 3 and at 7. The Court notes that Rule 15(a) states that leave to amend “shall be granted freely when justice so requires.” Because the rule “ ‘evinces a bias in favor of granting leave to amend,’ ” a court should have a “ ‘substantial reason,’ ” 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, and futility of amendment,’ ” if it denies such a request. Herrmann Holdings, Ltd. v. Lucent Technologies, Inc., 302 F.3d 552, 566 (5th Cir.2002), quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir.1981), and Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir.1998). Although Outside Directors complain that Lead Plaintiff has already had an opportunity to amend, the situation in a class action governed by the PSLRA is distinguishable from that in an ordinary single-suit action. Here Lead Plaintiffs first “amendment” involved writing essentially a new complaint, covering many actions, claims, and parties npt originally asserted in its member case, within an expedited time period. Moreover, the Fifth Circuit has noted, The PSLRA was enacted, in part, to compensate for “the perceived inability of Rule 9(b) to prevent abusive frivolous strike suits.” It was not enacted to raise the pleading burdens under Rule 9(b) and section 78u-4(b)(l) to such a level that facially valid claims, which are not brought for nuisance value or as leverage to obtain a favorable or inflated settlement, must be routinely .dismissed on Rule 9(b) and 12(b)(6) motions [footnotes omitted]. ABC Arbitrage Plaintiffs Group v. Tchuruk, 291 F.3d 336, 354 (5th Cir.2002). From the totality of circumstances before it, this Court does .not find, and would be greatly surprised if any reasonable person disagreed, that the"
},
{
"docid": "22943351",
"title": "",
"text": "subjective belief to support a retaliation claims, which would have been insufficient to withstand summary judgment. The district court averred that Jones failed to offer an explanation for the two month lapse of time between the deposition and the filing of the EEOC claim. Moreover, the court observed that Jones’ proposed amended claim came nearly nine years after his initial accusation of racial bias, one year after the suit was filed and eight months after the established amendment deadline had lapsed. Because of Jones’ delay in filing his amendment, the district court held that Jones’ motion for leave to amend his complaint should be denied. Upon review of the record, we do not find that the district court abused its discretion in so ruling, and accordingly, we affirm the district court’s ruling. Rule 15(a) requires a trial court “to grant leave to amend ‘freely,’ and the language of this rule ‘evinces a bias in favor of granting leave to amend.’ ” Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir.2002) (citation omitted). A district court must possess a “substantial reason” to deny a request for leave to amend, id., but “leave to amend is by no means automatic.” Halbert v. City of Sherman, 33 F.3d 526, 529 (5th Cir.1994) (citation omitted). Decisions concerning motions to amend are “entrusted to the sound discretion of the district court[.]” Quintanilla v. Tex. Television, Inc., 139 F.3d 494, 499 (5th Cir.1998) (citation omitted). In deciding whether to grant leave to amend, the district court may consider a variety of factors in exercising its discretion, including undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of the amendment. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir.1981). RPG asserts that Jones unduly delayed amending his complaint to add the retaliation claim and that it will be prejudiced by Jones’ untimeliness. Jones bears the burden of showing that a delay was “"
},
{
"docid": "8222872",
"title": "",
"text": "we refrain from wading into the parties’ contentions regarding the district court’s other bases for dismissal. C. Remand to Amend Plaintiff asks us to remand to allow it to amend its amended complaint to allege injury to Torch. Typically, we review the district court’s decision not to grant leave to amend for abuse of discretion. Ellis v. Liberty Life Assurance Co., 394 F.3d 262, 268 (5th Cir.2004). Yet, at no point did plaintiff move the district court for leave to amend its amended complaint to allege a claim showing injury to Torch. Even assuming that plaintiff has properly raised and preserved the issue, we conclude that it is not entitled to relief. Rule 15 of the Federal Rules of Civil Procedure states that a court “should freely give [leave to amend] when justice so requires.” “Although Rule 15 evinces a bias in favor of granting leave to amend, it is not automatic.” Southmark Corp. v. Schulte Roth & Zabel (In re Southmark Corp.), 88 F.3d 311, 314 (5th Cir.1996) (quotation marks and citation omitted). Under Rule 15, the courts consider such equitable factors as “(1) undue delay; (2) bad faith; (3) dilatory motive on the part of the movant; (4) repeated failure to cure deficiencies by any previously allowed amendment; (5) undue prejudice to the opposing party; and (6) futility of amendment.” Ellis, 394 F.3d at 268. We conclude that justice does not require allowing plaintiff additional opportunity to amend. Plaintiff had ample opportunity to cure the noted defects when it amended its complaint in the aftermath of Gheewalla and in its arguments to the district court. See St. Germain v. Howard, No. 08-30364, 2009 WL 117944, at *2 (5th Cir.2009) (affirming denial of a motion for leave to amend where “[a]ppellants had several opportunities to state their best case”) (citing Price v. Pinnacle Brands, Inc., 138 F.3d 602, 607-08 (5th Cir.1998) (affirming denial of a motion for leave to amend where the plaintiffs, represented by counsel, “had three opportunities to articulate their damage theory”)). Over defendants’ opposition, the district court granted plaintiffs prior motion to amend its complaint. In"
},
{
"docid": "8129695",
"title": "",
"text": "disregard of the entities LJM2 established and transactions among them, as well as approval of deceptive accounting practices, furthered the alleged Ponzi scheme. In its new memorandum in opposition (# 853), supported by a new Appendix (# 858) of documents, Lead Plaintiff argues that its pleadings are sufficient to state a claim under § 10(b) and Rule 10b-5 against Belfer, Blake, Chan, Foy, Gramm, Jaedicke and LeMais-tre, based on (1) the newly submitted copies of minutes of related, key Enron board of directors or committee meetings to demonstrate the Outside Directors’ knowing and reckless participation in the alleged Ponzi scheme, (2) alleged facts in the complaint regarding manipulative and deceptive devices, scheme, and course of business that the Outside Directors used to defraud Enron’s investors, and (3) the complaint’s particulars (who, what, when, where and why) of each registration statement signed by each Outside Director. For clarity, the Court henceforth identifies the Outside Directors charged with fraud under § 10(b) and 10b-5 with an asterisk (*) to make them and the allegations giving rise to a strong inference of scienter against each easier to follow. Outside Directors in their reply vociferously object to “Plaintiffs’ unauthorized effort to amend their Complaint, in their Response, by adding close to sixty pages of new allegations” and “nearly thirty new factual exhibits,” # 909 at 2 n. 3 and at 7. The Court notes that Rule 15(a) states that leave to amend “shall be granted freely when justice so requires.” Because the rule “ ‘evinces a bias in favor of granting leave to amend,’ ” a court should have a “ ‘substantial reason,’ ” 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, and futility of amendment,’ ” if it denies such a request. Herrmann Holdings, Ltd. v. Lucent Technologies, Inc., 302 F.3d 552, 566 (5th Cir.2002), quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir.1981), and Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir.1998). Although Outside"
}
] |
826407 | 528 F.2d 975, 978 (7th Cir.1976), but Mr. Coleman offers evidence that 2,809 criminal felonies, 7,097 criminal misdemeanors and 1,630 DUI cases were filed in Kane County in 1997. The defendants present no compelling evidence of their own of dwindling population or crime. I need not abandon common sense in determining numerosity, Patrykus v. Gomilla, 121 F.R.D. 357, 360 (N.D.Ill. 1988), and Kane does not deny that detainees are charged a bond fee. Therefore, Mr. Coleman’s estimate that the proposed class would include hundreds of people is reasonable. While there is no threshold or magic number at which joinder is impracticable, a class of more than 40 members is generally believed to be sufficiently numerous for Rule 23 purposes. REDACTED see also Massie v. Illinois Department of Transportation, 1998 WL 312021, *2 (N.D.Ill.1998) (certifying class of 53); Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56 (N.D.Ill. 1996) (certifying class of 18). It is reasonable to conclude that at least forty people have been arrested and charged the “sheriffs fee.” A class action is also an appropriate vehicle to address what is alleged to be a systemic problem, as due to the small size of the fee amount, class members are unlikely to bring separate claims. Kane claims that commonality is defeated because Mr. Coleman’s friend tendered the bond fee to the Sheriff to secure his release. Therefore, Mr. Coleman has suffered no financial injury so has no standing and | [
{
"docid": "12551451",
"title": "",
"text": "was not sufficient where joinder is practicable because the majority of class members were controlled by the same corporation); Liberty Lincoln-Mercury, Inc. v. Ford Marketing Corp., 149 F.R.D. 65 (D.N.J.1993) (finding that 123 class members was not sufficient where the class members were large businesses capable of litigating their claims individually). As a general proposition, although the numerosity analysis does not rest on any magic number, see Allen v. City of Chicago, 828 F.Supp. 543, 550 (N.D.Ill.1993), permissive joinder is usually deemed impracticable where the class members number 40 or more. See H. Newberg, Class Actions § 305 (1992); Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258, 262 (S.D.Cal.1988). That standard is met in this case. Southwest concedes that the proposed class would consist of approximately 50 members for purposes of the TILA claim [count I] and approximately 150 members for purposes of the Consumer Fraud Act claim [count II], but argues that these classes are insufficiently numerous to warrant certification. Southwest cites Marcial, In re Cardinal Indus., and Liberty Lincoln-Mercury as support for its argument. See Defendant’s Response in Opposition to Plaintiffs Motion for Class Certification at 4. However, in each of these cases, class certification was denied for reasons unrelated to numerosity. Moreover, the facts of this case are significantly different than those presented in the cases cited by Southwest. In the instant case, the dispute concerns a standard form document signed by all proposed class members, who are otherwise unrelated and would unlikely be motivated to bring individual actions given the relatively small size of the claim. These factors militate in favor of class certification even where the number of class members is relatively small. See, e.g., Swanson v. American Consumer Indus., 415 F.2d 1326, 1333 n. 9 (7th Cir.1969) (finding 40 class members sufficient for certification where individual class members are widely scattered and the amount at issue too small to warrant undertaking individual actions). In the instant case, the Court finds that the proposed classes are sufficiently numerous to make joinder impracticable. Accordingly, we find the numerosity requirement to be satisfied. B. Commonality Rule 23(a)(2)"
}
] | [
{
"docid": "21023939",
"title": "",
"text": "questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Shvartsman v. Apfel, 138 F.3d 1196, 1201 (7th Cir.1998). This is a class action for damages under Rule 23(b)(3). The showing for a Rule 23(b)(3) certification is that: (1) common issues of law and fact predominate and (2) a class action is superior to other forms of adjudication. Wamell v. Ford Motor Co., 189 F.R.D. 383, 386 (N.D.Ill.1999). The parties seeking class certification assume the burden of demonstrating that certification is appropriate. Retired Chicago Police Assoc. v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993). I assess whether the class should be certified without regard to the merits, Mira v. Nuclear Measurements Corp., 107 F.3d 466, 474 (7th Cir.1997). II. Mr. Ringswald seeks to certify and represent the class of “[a]ll DuPage County pretrial detainees who were required to pay a sheriffs fee for the' processing of their criminal bail bonds prior to January 1, 2000.” This is a readily identifiable class of which Mr. Ringswald is a member. Mr. Ringswald claims that hundreds of detainees were charged the allegedly unlawful fee, so joinder is impracticable and numerosity satisfied. Mr. Ringswald offered no evidence in support of the number of plaintiffs he estimates in his original motion, so DuPage claims he has not met his burden. Naked speculation as to the size of a class generally do not suffice, Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir.1976), but Mr. Ringswald offers in his reply evidence that over 5,000 felony cases and 33,000 misdemeanors (which include DUI cases) were filed in 1996 alone. Presumably, most of the felony defendants were arrested and released on bond, as may well have been a significant portion of those arrested for misdemeanors. Moreover, I need not abandon common sense in determining numerosity. Patrykus v. Gomilla, 121 F.R.D. 357, 360 (N.D.Ill.1988). DuPage is a county with a population of close to"
},
{
"docid": "21023941",
"title": "",
"text": "a million, and the DuPage County Sheriffs Office “directly services the unincorporated areas of the county with a population of 111, 388 (1994 census).” (Source: http://www.dupageco.org/sheriff). I take judicial notice that arrests and releases likely occur on a daily basis, and DuPage does not deny that detainees are charged a bond fee. Based thereon, Mr. Ringswald’s estimate that the proposed class would include hundreds of people is reasonable. While there is no threshold or magic number at which joinder is impracticable, a class of more than 40 members is generally believed to be sufficiently numerous for Rule 23 purposes. Chandler v. Southwest Jeep-Eagle, Inc., 162 F.R.D. 302, 307 (N.D.Ill.1995); see also Massie v. Illinois Department of Transportation, 1998 WL 312021, *2 (N.D.Ill.1998) (certifying class of 53); Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56 (N.D.Ill.1996) (certifying class of 18). It certainly is reasonable to conclude that at least forty people have been arrested and charged the “sheriffs fee.” A class action is also an appropriate vehicle to address what is alleged to be a systemic problem, as due to the small size of the fee amount, class members are unlikely to bring separate claims. Mr. Ringswald claims that the class issues involve the same set of operative facts and legal issues, mainly whether the collection of bond fees unconstitutional. DuPage claims that Mr. Ringswald lacks standing because his friend tendered the bond fee to the Sheriff to secure his release. Therefore, Mr. Ringswald has suffered no financial injury so has no standing and cannot represent a class of plaintiffs that did pay the fee. This is silly. Mr. Ringswald alleges that his friend paid his money on his behalf, so it is he who suffered the loss. Most, if not all, people who are locked up in jail similarly have someone else pay their bond — and any sheriffs fee — for them. Mr. Ringswald’s complaint alleges standardized conduct by the defendants toward members of the proposed class of pretrial detainees. Patterson v. General Motors Corp., 631 F.2d 476, 481 (7th Cir.1980). Therefore, common questions of law and fact exist,"
},
{
"docid": "16254008",
"title": "",
"text": "again here. DISCUSSION A. Rule 23(a) 1. Numerosity-Rule 23(a)(1) To meet the numerosity requirement, the class must be so large “that joinder of all members is impracticable.” Keele, 149 F.3d at 594; Fed.R.Civ.P. 23(a)(1). In order to establish numerosity, a plaintiff need not allege the exact number of members of the proposed class. Johnson v. Rohr-Ville Motors, Inc., 189 F.R.D. 363, 368 (N.D.Ill.1999). Generally, where the membership of the proposed class is at least 40, joinder is impracticable and the numerosity requirement is met. Id. (citing Swanson v. American Consumer Indus., Inc., 415 F.2d 1326, 1333 (7th Cir. 1969)). The court is entitled to make “common-sense assumptions that support a finding of numerosity.” Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56 (N.D.Ill.1996). Defendants do not contest numerosity. Although Operating Engineers does not specify the exact number of proposed class members, the court is satisfied that the numerosity requirement is met. As Operating Engineers points out, NeoPharm stock trades on NASDAQ and more than 16 million shares are outstanding. It can be reasonably inferred that hundreds, if not thousands, of persons would be included in the proposed class. Because of this number of persons, it would be impracticable to join all individual class members in one suit. Accordingly, the court finds that the numerosity requirement has been satisfied. 2. Commonality-Rule 23(a)(2) To meet the commonality requirement, “there must exist ‘questions of law or fact’ common to the class.’ ” Keele, 149 F.3d at 594; Fed.R.Civ.P. 23(a)(2); see also, Tylka v. Gerber Prods. Co., 178 F.R.D. 493, 496 (N.D.Ill.1998) (noting that if at least one question of law or fact is common to the class, then commonality is satisfied). “A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2).” Keele, 149 F.3d at 594 (quotation omitted). A common nucleus of operative fact exists where “defendants have engaged in standardized conduct to ward members of the proposed class.” Id. “[T]he commonality requirement has been characterized as a ‘low hurdle’ easily surmounted.” Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 185 (N.D.Ill. 1992). Defendants do not"
},
{
"docid": "21023942",
"title": "",
"text": "problem, as due to the small size of the fee amount, class members are unlikely to bring separate claims. Mr. Ringswald claims that the class issues involve the same set of operative facts and legal issues, mainly whether the collection of bond fees unconstitutional. DuPage claims that Mr. Ringswald lacks standing because his friend tendered the bond fee to the Sheriff to secure his release. Therefore, Mr. Ringswald has suffered no financial injury so has no standing and cannot represent a class of plaintiffs that did pay the fee. This is silly. Mr. Ringswald alleges that his friend paid his money on his behalf, so it is he who suffered the loss. Most, if not all, people who are locked up in jail similarly have someone else pay their bond — and any sheriffs fee — for them. Mr. Ringswald’s complaint alleges standardized conduct by the defendants toward members of the proposed class of pretrial detainees. Patterson v. General Motors Corp., 631 F.2d 476, 481 (7th Cir.1980). Therefore, common questions of law and fact exist, and commonality is met. Typicality is met under Rule 23(a)(3) when the claim arises from the same event, practice or course of conduct that gives rise to the claims of the other class members and is based upon the same legal theory as the other class claims. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir.1992) (citation omitted). The plaintiffs here allege identical legal theories based on similar fact patterns, that they were arrested and detained until they could pay not only their court-determined bail but a bond fee imposed by the DuPage County Sheriff. The defendants pose two related challenges to typicality. First, they allege that the claims of the named plaintiffs with cases currently pending are barred under the Younger abstention doctrine. Second, they argue that because plaintiffs did not raise these claims in their previous state proceeding, they are collaterally estopped from doing so now. Walker v. Cockrell, 110 Ill.App.3d 562, 66 Ill.Dec. 234, 442 N.E.2d 660 (1982). The Younger abstention doctrine prevents federal courts from enjoining state criminal proceedings, not from"
},
{
"docid": "11989036",
"title": "",
"text": "an ascertainable class is satisfied. Turning next to the issue of numerosity, Rule 23(a) requires that the class be “so numerous that joinder of all members is impracticable[.]” Fed.R.Civ.P. 23(a)(1). “A class of more than 40 individuals raises a presumption that joinder is impracticable.” Carrier v. JPB Enters., Inc., 206 F.R.D. 332, 334 (D.Me.2002). See also Cox v. American Cast Iron Pipe Co., 784 F.2d 1546,1553 (11th Cir.1986) (“[Wjhile there is no fixed numerosity rule, ... generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors.”). Correspondingly, courts have found the numerosity element satisfied where the putative class would number in the range of as few as ten to forty class members. See, e.g., Swanson v. American Consumer Indus., Inc., 415 F.2d 1326, 1333 & n. 9 (7th Cir.1969) (forty class members satisfied numerosity); Hendricks-Robinson v. Excel Corp., 164 F.R.D. 667, 671 (C.D.Ill. 1996) (thirty-eight class members satisfied numerosity); Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D.Ill.1986) (certifying a class of twenty-nine members, and noting that courts have certified classes of as few as ten members). Further, a court is entitled to make “common sense assumptions” in resolving the question of numerosity. Arenson v. Whitehall Convalescent & Nursing Home, Inc., 164 F.R.D. 659, 662 (N.D.Ill.1996). In this case the plaintiffs have adduced evidence that the proposed class includes at the very least thousands of members, so that the requirement of numerosity is satisfied. See Hochschuler v. G.D. Searle & Co., 82 F.R.D. 339, 343 (N.D.Ill.1978) (noting that a class exceeding one thousand members is plainly sufficient to satisfy numerosity). With respect to commonality, under Rule 23(a), “questions of law or fact common to the class” must exist before a class may be certified. Fed.R.Civ.P. 23(a)(2). “[T]he commonality requirement has been characterized as a ... low hurdle ... [that is] easily surmounted,” Gaspar v. Linvatec Corp., 167 F.R.D. 51, 57 (N.D.Ill.1996) (quoting Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 185 (N.D.Ill.1992)), because, to satisfy commonality, a plaintiff need only show that there is “at least one question of law or"
},
{
"docid": "13794393",
"title": "",
"text": "that Elgin violated Title VII under a disparate treatment theory of liability. Elgin urges this Court to decertify the class because the plaintiffs do not satisfy Rule 23(a)’s numerosity requirement for the class as a whole, and fail to establish a pattern or practice of discrimination and therefore cannot satisfy Rule 23(a)’s commonality, typicality, or adequacy of representation requirements. Alternatively, Elgin argues that this Court should limit the class to those applicants who auditioned, in which ease the modified class cannot satisfy the numerosity requirement. C. Prerequisites to Class Certification Under Rule 23(a) Because Plaintiffs, in “seeking to maintain a class action under Title VII must meet ‘the prerequisites of numerosity, commonality, typicality, and adequacy of representation’ specified in Rule 23(a),” this Court will discuss each element in turn. See Falcon, 457 U.S. at 156, 102 S.Ct. 2364 (quoting Gen. Tel. Co. of the Northwest v. E.E.O.C., 446 U.S. 318, 330, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980)). 1. Numerosity Rule 23(a)(1) requires that the class be so numerous to render joinder of all class members impracticable. “Impracticability does not mean impossibility, but instead requires plaintiffs to prove that it would be inconvenient and difficult to join all proposed members of the class.” Bethards v. Bard Access Sys., Inc., No. 94 C 1522, 1995 WL 75356, at *3 (N.D.Ill. Feb.22, 1995). Although plaintiffs may not rely on conclusory allegations or on speculation regarding class size, they need not reach a threshold number of claims. Allen v. City of Chicago, 828 F.Supp. 543, 550 (N.D.Ill.1993) (citations omitted). See also, e.g. Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56 (N.D.Ill.1996) (noting that a small class does not preclude certification because of failure to satisfy numerosity, and citing eases with similarly small classes). Indeed, courts need not consider solely the number of potential class members when evaluating whether a plaintiff satisfies the numerosity requirement. Gaspar, 167 F.R.D. at 56. To determine whether joinder is impracticable courts must consider the circumstances unique to each case. Patrykus, 121 F.R.D. at 361 (citing Swanson v. Am. Consumer Indus., 415 F.2d 1326, 1333 (7th Cir. 1969)). Such"
},
{
"docid": "10294683",
"title": "",
"text": "Rule 23(b)(3), which provides that a class action is proper if “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” In evaluating the motion for class certification, the allegations made in support of certification are taken as true, and we do not examine the merits of the case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152-53, 40 L.Ed.2d 732 (1974); Spencer v. Central States, Southeast and Southwest Areas Pension Fund, 778 F.Supp. 985, 989 (N.D.Ill.1991); Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D.Ill. 1986). The burden of showing that the requirements for class certification have been met rests with the plaintiffs. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982); Trotter v. Klincar, 748 F.2d 1177, 1184 (7th Cir.1984); Hardin v. Harshbarger, 814 F.Supp. 703, 706 (N.D.Ill.1993); Riordan, 113 F.R.D. at 62. A. Numerosity Rule 23(a)(1) requires that the proposed class be so numerous that joinder of all members is impracticable. While plaintiffs may not rely on conclusory allegations that joinder is impracticable or on speculation regarding the size of the class, Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir.1976); Kohn v. Mucia, 776 F.Supp. 348, 352-53 (N.D.Ill.1991), the complaint need not specify the exact number of persons included in the class. Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir.1989); Retired Chicago Police Ass’n v. City of Chicago, 141 F.R.D. 477, 484-85 (N.D.Ill.1992); Patrykus v. Gomilla, 121 F.R.D. 357, 360 (N.D.Ill.1988). Numerosity analysis does not entail thresholds of “magic numbers”; rather, the requisite finding may be supported by common sense assumptions. Patrykus, 121 F.R.D. at 360; Grossman v. Waste Management, Inc., 100 F.R.D. 781, 785 (N.D.Ill.1984). In order to approximate the size of the putative class, plaintiffs rely on a “city disc” provided by the City that sets forth all “off actions” between October,"
},
{
"docid": "8040514",
"title": "",
"text": "of a vehicle on a printed form, substantially similar to Exhibit A, that required the borrower insure the vehicle against loss and damage, and allowed the lender, in the event of the borrower’s failure to insure the vehicle, to obtain such insurance; ... were charged for force placed insurance pursuant to coverage arranged by SAI; and ... [t]he charge was imposed, remained outstanding, or was paid on or after June 26, 1985. (Second Am.Mot., at 1-2.) 1. Numerosity Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Here, the number of class members is well over one hundred, in fact, it could exceed fifteen hundred. Plaintiff has shown that the potential class is so numerous that joinder of all members is impracticable. See In re Alcoholic Beverages Litig., 95 F.R.D. 321, 324 (E.D.N.Y.1982) (class action may proceed upon estimates as to size of proposed class); see also Hispanics United of DuPage County v. Village of Addison, Ill., 160 F.R.D. 681, 688 (N.D.Ill.1995) (quoting Patrykus v. Gomilla, 121 F.R.D. 357, 361 (N.D.Ill.1988), court is “entitled to make common sense assumptions” in determining numerosity); Riordan, 113 F.R.D. at 62 (approximately twenty-nine members sufficient for numerosity). 2. Commonality Rule 23(a)(2) requires that there exist “questions of law or fact common to the class”. A “common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2).” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir.1992), cert. denied, 506 U.S. 1051, 113 S.Ct. 972, 122 L.Ed.2d 127 (1993); see also Meiresonne v. Marriott Corp., 124 F.R.D. 619, 622 (N.D.Ill.1989) (“Commonality is not a demanding requirement: It calls only for the existence of at least one issue of fact or law common to all class members____”). Plaintiffs’ allegations involve numerous common questions of law and fact regarding SAI’s standardized conduct toward members of the proposed class. Franklin v. City of Chicago, 102 F.R.D. 944, 949 (N.D.Ill.1984) (where question of law involves “standardized conduct of the defendants toward members of the proposed class, a common nucleus of operative facts is typically presented, and the commonality"
},
{
"docid": "12567874",
"title": "",
"text": "neighborhoods at the time their applications were denied. As defined, the class definition properly focuses on defendant’s conduct with respect to the denial rate of African-American home loan applicants, in general, and African-Americans living in African-American neighborhoods, in particular. The definiteness threshold requirement is therefore met. See Alliance to End Repression, 565 F.2d at 977; Gomez, 117 F.R.D. at 397. Courts retain broad power to modify the definition of a proposed class. See, e.g., Metropolitan Area Hous. Alliance v. United States Dep’t of Hous. & Urban Dev., 69 F.R.D. 633 (N.D.Ill.1976) (citing Metcalf v. Edelman, 64 F.R.D. 407, 409 (N.D.Ill.1974)) (“[a] court may modify the proposed definition of a class if it believes the definition is inadequate”); see also C.A. Wright, et al., Federal Practice & Procedure § 1760 at 127-28 (2d ed. 1986). This Court retains the power to modify the class definition at anytime before a final judgment on the merits, if the evidence or the legal principles governing this case establishes that the class definition is too broad. Fed.R.Civ.P. 23(c)(1). We now address the explicit requirements of Rule 23(a). 1. Numerosity Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). In making this determination, “the court is entitled to make common sense assumptions.” Patrykus v. Gomilla, 121 F.R.D. 357, 360 (N.D.Ill.1988). See also In re VMS Sec. Litig., 136 F.R.D. 466, 473 (N.D.Ill.1991). Additionally, although “the one who asserts the class must show some evidence or reasonable estimate of the number of class members[,] if a plaintiff cannot provide precise numbers, “a good faith estimate is sufficient [to satisfy the numerosity requirement] where it is difficult to assess the exact class membership.” Long v. Thornton Township High Sch. Dist. 205, 82 F.R.D. 186, 189 (N.D.Ill.1979). Plaintiffs allege that Citibank denied home loans to over 780 African-Americans between 1992 and 1993. The HMDA data also suggest that a substantial percentage of these African-American applicants sought home loans for properties located in predominantly African-American neighborhoods. Plaintiffs have cited cases in which classes were certified with fewer than 780 members. See"
},
{
"docid": "21023940",
"title": "",
"text": "sheriffs fee for the' processing of their criminal bail bonds prior to January 1, 2000.” This is a readily identifiable class of which Mr. Ringswald is a member. Mr. Ringswald claims that hundreds of detainees were charged the allegedly unlawful fee, so joinder is impracticable and numerosity satisfied. Mr. Ringswald offered no evidence in support of the number of plaintiffs he estimates in his original motion, so DuPage claims he has not met his burden. Naked speculation as to the size of a class generally do not suffice, Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir.1976), but Mr. Ringswald offers in his reply evidence that over 5,000 felony cases and 33,000 misdemeanors (which include DUI cases) were filed in 1996 alone. Presumably, most of the felony defendants were arrested and released on bond, as may well have been a significant portion of those arrested for misdemeanors. Moreover, I need not abandon common sense in determining numerosity. Patrykus v. Gomilla, 121 F.R.D. 357, 360 (N.D.Ill.1988). DuPage is a county with a population of close to a million, and the DuPage County Sheriffs Office “directly services the unincorporated areas of the county with a population of 111, 388 (1994 census).” (Source: http://www.dupageco.org/sheriff). I take judicial notice that arrests and releases likely occur on a daily basis, and DuPage does not deny that detainees are charged a bond fee. Based thereon, Mr. Ringswald’s estimate that the proposed class would include hundreds of people is reasonable. While there is no threshold or magic number at which joinder is impracticable, a class of more than 40 members is generally believed to be sufficiently numerous for Rule 23 purposes. Chandler v. Southwest Jeep-Eagle, Inc., 162 F.R.D. 302, 307 (N.D.Ill.1995); see also Massie v. Illinois Department of Transportation, 1998 WL 312021, *2 (N.D.Ill.1998) (certifying class of 53); Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56 (N.D.Ill.1996) (certifying class of 18). It certainly is reasonable to conclude that at least forty people have been arrested and charged the “sheriffs fee.” A class action is also an appropriate vehicle to address what is alleged to be a systemic"
},
{
"docid": "21023938",
"title": "",
"text": "MEMORANDUM OPINION AND ORDER BUCKLO, District Judge. Richard Ringswald was arrested on October 23, 1999 and taken into custody at the DuPage County Jail, where Sheriff Zaruba is the executive officer responsible for the daily operation and policies of the jail. In addition to the bail set by the Circuit Court of Du-Page County, Mr. Ringswald was required to pay a nonrefundable $15 fee to secure his pretrial release. It is DuPage County’s policy to collect this fee from every person who posts bond at the DuPage County Jail. Mr. Ringswald claims that charging this “sheriffs fee” in addition to a court-imposed bond to be released from jail violates the United States and Illinois Constitution and sues the County of DuPage and its Sheriff. Mr. Ringswald moves for class certification as a Rule 23(b)(3) action for damages, and I grant the motion. I. Rule 23(a) of the Federal Rules of Civil Procedure provides for certification of a class when: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Shvartsman v. Apfel, 138 F.3d 1196, 1201 (7th Cir.1998). This is a class action for damages under Rule 23(b)(3). The showing for a Rule 23(b)(3) certification is that: (1) common issues of law and fact predominate and (2) a class action is superior to other forms of adjudication. Wamell v. Ford Motor Co., 189 F.R.D. 383, 386 (N.D.Ill.1999). The parties seeking class certification assume the burden of demonstrating that certification is appropriate. Retired Chicago Police Assoc. v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993). I assess whether the class should be certified without regard to the merits, Mira v. Nuclear Measurements Corp., 107 F.3d 466, 474 (7th Cir.1997). II. Mr. Ringswald seeks to certify and represent the class of “[a]ll DuPage County pretrial detainees who were required to pay a"
},
{
"docid": "4084798",
"title": "",
"text": "in which hundreds of thousands ... of shares of the security were traded must necessarily be ‘so numerous that joinder of all members is impracticable.’ ”). Here, although the exact number of class members is not known at this time, Plaintiffs estimate, relying on information from the Bank’s stock transfer books, that there are at least 1,000 shareholders who purchased shares of AmeriFirst stock during the class period. Further, Defendants do not dispute that the class is sufficiently large to satisfy the numerosity requirement. Accordingly, the numerosity threshold of Rule 23(a) has been met. See id. (stating that classes with as few as thirty members have been certified by some courts). B. Commonality Class certification is only appropriate where there are questions of law or fact common to all class members. Fed. R.Civ.P. 23(a)(2); Weiss v. York Hosp., 745 F.2d 786, 808 (3d Cir.1984), cert. denied, 470 U.S. 1060, 105 S.Ct. 1777, 84 L.Ed.2d 836 (1985). Establishing commonality, however, does not require complete identity of the plaintiffs’ claims. Id. at 808-09; Johnson v. American Credit Co. of Georgia, 581 F.2d 526, 532 (5th Cir.1978). Rather, the requirement is usually satisfied if all class members are in a “substantially identical factual situation” and the “questions of law raised by the plaintiff are applicable to each class member.” Weiss, 745 F.2d at 809. Moreover, a court will normally find commonality where a question of law refers to standardized conduct by defendants towards members of the proposed class. See, e.g., Patrykus v. Gomilla, 121 F.R.D. 357, 361 (N.D.Ill.1988) (citing Franklin v. City of Chicago, 102 F.R.D. 944, 949 (N.D.Ill.1984)); Green, 406 F.2d at 300. Individual differences concerning treatment or damages will not defeat a finding of commonality. Patrykus, 121 F.R.D. at 361. Applying these principles, there is no question that there is commonality of facts and issues in this case. Plaintiffs’ Rule 10b-5 claims allege that Defendants participated in a common fraudulent scheme to artificially inflate the price of AmeriFirst stock and mislead investors. As both the factual and legal issues necessary to prove these claims and establish the defendants’ liability for the"
},
{
"docid": "12567875",
"title": "",
"text": "address the explicit requirements of Rule 23(a). 1. Numerosity Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). In making this determination, “the court is entitled to make common sense assumptions.” Patrykus v. Gomilla, 121 F.R.D. 357, 360 (N.D.Ill.1988). See also In re VMS Sec. Litig., 136 F.R.D. 466, 473 (N.D.Ill.1991). Additionally, although “the one who asserts the class must show some evidence or reasonable estimate of the number of class members[,] if a plaintiff cannot provide precise numbers, “a good faith estimate is sufficient [to satisfy the numerosity requirement] where it is difficult to assess the exact class membership.” Long v. Thornton Township High Sch. Dist. 205, 82 F.R.D. 186, 189 (N.D.Ill.1979). Plaintiffs allege that Citibank denied home loans to over 780 African-Americans between 1992 and 1993. The HMDA data also suggest that a substantial percentage of these African-American applicants sought home loans for properties located in predominantly African-American neighborhoods. Plaintiffs have cited cases in which classes were certified with fewer than 780 members. See Concerned Tenants Ass’n of Indian Trails Apartments v. Indian Trails Apartments, 496 F.Supp. 522 (N.D.Ill.1980) (certifying a class consisting of 360 tenants and their families in a housing discrimination ease); Edmondson v. Simon, 86 F.R.D. 375 (N.D.Ill.1980) (certifying a class consisting of 170 members); Riordan v. Smith Barney, 113 F.R.D. 60 (N.D.Ill.1986) (certifying a class consisting of 29 plaintiffs); Contract Buyers League v. F & F Inv., 48 F.R.D. 7 (N.D.Ill.1969) (certifying a class consisting of 50 African-American home buyers). Thus, even if the number of class members in this case were less than half that alleged by the Plaintiffs, the ease law cited above indicates that class certification is appropriate. Given that a “good faith estimate” is sufficient to satisfy Rule 23(a)(1), this Court finds that the numerosity requirement has been met. 2. Commonality Rule 23(a)(2) requires the presence of questions of law or fact common to the class. “A common nucleus of operative fact is usually enough to satisfy the commonality requirement,” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir.1992) (citing Franklin"
},
{
"docid": "19708458",
"title": "",
"text": "for class certification have been met rests with the plaintiffs. Spencer, 778 F.Supp. at 989; General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). In the instant case, this court agrees with Magistrate Judge Gottschall that the plaintiffs have properly established the class certification requirements under Rule 23(a). Under Rule 23(a)(1), a plaintiff class must be so numerous that joinder of all members is impracticable. “Impracticable” does not mean impossible. Rather, the numerosity requirement will be met if joinder of all members is extremely difficult or inconvenient. Gomez v. Illinois State Board of Education, 117 F.R.D. 394, 398-99 (N.D.Ill.1987). In considering whether joinder of all members is impracticable, the court must consider such factors as: the size of the class, the geographic dispersion of its members, the nature of the relief sought, and the practicality of forcing relitigation of a common core issue. Id. As the Magistrate Judge discussed, the plaintiffs here contend that one percent of the general population suffers from bipolar affective disorder. The plaintiffs also estimate that each of the three proposed classes would include at least 200 individuals. The defendants do not contest these figures. Based upon the plaintiffs’ estimates, the court agrees with Magistrate Judge Gottschall’s conclusion that these numbers suffice for the purposes of establishing numerosity. Classes much smaller in size than the proposed class in this case have been certified in this district. See, e.g., Rosario v. Cook County, 101 F.R.D. 659 (N.D.Ill.1983) (the court certified a class of twenty). Furthermore, the Magistrate Judge properly concluded that a review of the records of defendants’ thousands of insured plans would likely uncover many more potential class members whose participation would sufficiently increase the class size for the purposes of establishing numerosity. This court is entitled to make such common sense assumptions in order to support a finding of numerosity. Patrykus v. Gomilla, 121 F.R.D. 357, 360-61 (N.D.Ill.1988); Grossman v. Waste Management, Inc., 100 F.R.D. 781, 785 (N.D.Ill.1984). The defendants object to this decision because they contend that under ERISA each plaintiff only has standing"
},
{
"docid": "13206802",
"title": "",
"text": "finds that Gaspar’s class action is limited to employees who were or could have been participants of the retirement and severance plans and were offered a choice between the plans. Consequently, Gaspar’s proposed class numbers 18. A proposed class must be so numerous that joinder of all members is impracticable. Fed.R.Civ.P. 23(a)(1). The court is not limited to considering merely the number of potential class members, but may make common-sense assumptions that support a finding of numerosity. Patrykus v. Gomilla, 121 F.R.D. 357, 360-61 (N.D.Ill. 1988) (citing Grossman v. Waste Management, Inc., 100 F.R.D. 781, 785 (N.D.Ill. 1984)). For example, the court may consider factors such as judicial economy and the ability of members to bring individual lawsuits. See Patrykus, 121 F.R.D. at 361 (citing Tenants Associated for a Better Spaulding v. United States Dept. of Housing and Urban Development (HUD), 97 F.R.D. 726, 729 (N.D.Ill.1983)). In addition, the court must look at the individual circumstances of a case in determining whether joinder is impracticable. Patrykus, 121 F.R.D. at 361. “A relatively small group may form a class if other considerations make joinder impracticable.” Id. The geographical dispersion of class members is one of these considerations; that is, the more geographically separated the proposed members are, the more joinder becomes impracticable. See id. First, the court notes that the mere number of members in Gaspar’s proposed class — 18—is not so small as to preclude the numerosity requirement from being met. See, e.g., Patrykus, 121 F.R.D. at 361 (citing Rosario v. Cook County, 101 F.R.D. 659, 661 (N.D.Ill.1983) (class of 20 held sufficient); Dale Electronics v. R.C.L. Electronics, Inc., 53 F.R.D. 531, 534 (D.N.H.1971) (class of 13 held sufficient)). Second, although Gaspar seeks, damages for himself and the other proposed class members, the damages flow from the resolution of a single question: whether defendants violated ERISA by forcing Gaspar and the proposed class members to choose between the severance and early retirement plans. Thus, judicial economy would be served by deciding this issue in one ease. Third, the potential class members are geographically dispersed between Illinois, New Jersey, and Tennessee."
},
{
"docid": "10294684",
"title": "",
"text": "F.Supp. 703, 706 (N.D.Ill.1993); Riordan, 113 F.R.D. at 62. A. Numerosity Rule 23(a)(1) requires that the proposed class be so numerous that joinder of all members is impracticable. While plaintiffs may not rely on conclusory allegations that joinder is impracticable or on speculation regarding the size of the class, Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir.1976); Kohn v. Mucia, 776 F.Supp. 348, 352-53 (N.D.Ill.1991), the complaint need not specify the exact number of persons included in the class. Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir.1989); Retired Chicago Police Ass’n v. City of Chicago, 141 F.R.D. 477, 484-85 (N.D.Ill.1992); Patrykus v. Gomilla, 121 F.R.D. 357, 360 (N.D.Ill.1988). Numerosity analysis does not entail thresholds of “magic numbers”; rather, the requisite finding may be supported by common sense assumptions. Patrykus, 121 F.R.D. at 360; Grossman v. Waste Management, Inc., 100 F.R.D. 781, 785 (N.D.Ill.1984). In order to approximate the size of the putative class, plaintiffs rely on a “city disc” provided by the City that sets forth all “off actions” between October, 1991 and May, 1992. Based on this information, plaintiffs claim that at least 1,800 employees qualify as class members. Although it appears that the “city disc” lists personnel actions beyond the scope of the putative class, including deaths, layoffs where employees simply bumped into another position, and seasonal changes, we nevertheless are satisfied the class is so numerous that joinder would be impracticable. To be sure, Exhibit 2 of plaintiffs reply brief indicates that the City in 1991 laid off a total of 527 blacks and 107 hispanics. These numbers alone clearly make joinder impracticable and, as such, the numerosity requirement of Rule 23(a) is satisfied. B. Commonality Rule 23(a)(2) requires plaintiffs to demonstrate that there is at least one question of law or fact common to the class. In re VMS Sec. Litig., 136 F.R.D. 466, 473 (N.D.Ill.1991); Patrykus, 121 F.R.D. at 361. “Not all factual or legal questions raised in a lawsuit need be common so long as a single issue is common to all class members.” Riordan, 113 F.R.D. at 63 (citing"
},
{
"docid": "13206801",
"title": "",
"text": "ERISA sections 502(a)(1) and (2) allow beneficiaries of benefit plans to sue to recover benefits because in some cases, it is the beneficiaries who are deprived of benefits. For example, one can imagine a deceased employee’s widow suing for life insurance benefits. Obviously, it would be the widow, and not the deceased employee, who would be entitled to benefits under a life insurance plan. Senn is such a ease. In Senn, the class consisted of employees and beneficiaries of health and life insurance benefits. The beneficiaries as well as the employees had standing to sue because the beneficiaries were seeking health coverage and life insurance benefits, which are types of benefits that can be conferred directly on beneficiaries. See Senn, 951 F.2d at 811. In Gaspar’s case, however, only the employees were entitled to retirement and severance benefits. An employee’s spouse or children might have “benefitted” from the retirement and severance benefits, in the colloquial sense of the word, but the benefits themselves were not conferred on the employee’s spouse or dependents. Therefore, the court finds that Gaspar’s class action is limited to employees who were or could have been participants of the retirement and severance plans and were offered a choice between the plans. Consequently, Gaspar’s proposed class numbers 18. A proposed class must be so numerous that joinder of all members is impracticable. Fed.R.Civ.P. 23(a)(1). The court is not limited to considering merely the number of potential class members, but may make common-sense assumptions that support a finding of numerosity. Patrykus v. Gomilla, 121 F.R.D. 357, 360-61 (N.D.Ill. 1988) (citing Grossman v. Waste Management, Inc., 100 F.R.D. 781, 785 (N.D.Ill. 1984)). For example, the court may consider factors such as judicial economy and the ability of members to bring individual lawsuits. See Patrykus, 121 F.R.D. at 361 (citing Tenants Associated for a Better Spaulding v. United States Dept. of Housing and Urban Development (HUD), 97 F.R.D. 726, 729 (N.D.Ill.1983)). In addition, the court must look at the individual circumstances of a case in determining whether joinder is impracticable. Patrykus, 121 F.R.D. at 361. “A relatively small group may"
},
{
"docid": "13794394",
"title": "",
"text": "members impracticable. “Impracticability does not mean impossibility, but instead requires plaintiffs to prove that it would be inconvenient and difficult to join all proposed members of the class.” Bethards v. Bard Access Sys., Inc., No. 94 C 1522, 1995 WL 75356, at *3 (N.D.Ill. Feb.22, 1995). Although plaintiffs may not rely on conclusory allegations or on speculation regarding class size, they need not reach a threshold number of claims. Allen v. City of Chicago, 828 F.Supp. 543, 550 (N.D.Ill.1993) (citations omitted). See also, e.g. Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56 (N.D.Ill.1996) (noting that a small class does not preclude certification because of failure to satisfy numerosity, and citing eases with similarly small classes). Indeed, courts need not consider solely the number of potential class members when evaluating whether a plaintiff satisfies the numerosity requirement. Gaspar, 167 F.R.D. at 56. To determine whether joinder is impracticable courts must consider the circumstances unique to each case. Patrykus, 121 F.R.D. at 361 (citing Swanson v. Am. Consumer Indus., 415 F.2d 1326, 1333 (7th Cir. 1969)). Such circumstances include whether class members are able to bring individual suits; whether it is judicially efficient for the court to try such individual suits; and the geographical dispersion of class members. Gaspar, 167 F.R.D. at 56. For example, if class members are dispersed across a vast geographic area, joinder is less practicable. See e.g. Betts v. Sundstrand Corp., No. 97 C 50188, 1999 WL 436579, at *5 (N.D.Ill. June 21, 1999) (explaining that the “lack of geographic dispersion” of class members “weighs against” class certification because joinder impracticability decreases where all class members can be found within the same judicial district). Additionally, while injunctive and declaratory relief contribute to satisfying numerosity, requests for monetary relief detract from a finding that plaintiffs satisfy numerosity. Id. See also Stambaugh v. Kan. Dep’t of Corr., 151 F.R.D. 664, 673 (D.Kan.1993) (noting that courts consider “the inconvenience or inefficiency in trying individual suits, the ability of class members to bring their own suits, the size of the individual claims, a request for injunctive or declaratory relief, the nature of"
},
{
"docid": "243069",
"title": "",
"text": "not established numerosity on behalf of the class since the only class she could represent would be one sustaining emotional distress and there are no allegations that other class members sustained such an injury. 1. Numerosity With respect to the element of numerosity, certification is only appropriate where the class is so numerous that joinder of all members is impracticable. Fed. R.Civ.P. 23(a)(1). This requires some evidence or reasonable estimate of the number of class members. A good faith estimate is sufficient to establish numerosity when the precise number of class members cannot be determined. Buycks-Roberson v. Citibank Federal Savings Bank, 162 F.R.D. 322, 329 (N.D.Ill.1995). Mere allegations of numerosity and speculation as to class size, however, are not sufficient. Marcial v. Coronet Ins. Co., 122 F.R.D. 529, 531 (N.D.Ill.1988), aff'd 880 F.2d 954 (7th Cir.1989). A plaintiff cannot establish numerosity without showing that some other person besides himself is similarly situated. In re Smith, 151 B.R. 870 (N.D.Ill.1993). In evaluating numerosity, the court may make common sense assumptions regarding class size. Evans v. United States Pipe & Foundry, 696 F.2d 925, 930 (11th Cir.1983); Patrykus v. Gomilla, 121 F.R.D. 357, 360-61 (N.D.Ill.1988)(citing Grossman v. Waste Management, 100 F.R.D. 781, 785 (N.D.Ill.1984)). Where the exact class size is unknown, but it is general knowledge or common sense that it is large, the court may take judicial notice of this fact and assume that joinder is impracticable. 2 Newberg on Class Actions § 7.22.A (3d ed.1992); In re Wiley, 224 B.R. 58, 75 (Bankr.N.D.Ill.1998)(assuming numerosity based on the use of form reaffirmations and the sheer number of cases in which the defendant was a creditor). Such assumptions are particularly reasonable when dealing with form contracts and letters. Swiggett v. Watson, 441 F.Supp. 254, 256 (D.Del.1977). In this case, the Debtor has alleged that Providian and its affiliates are the thirteenth largest issuers of credit cards in the United States; that it intentionally targets riskier customers so that a disproportionate numbers of its customers file for bankruptcy protection; that it used a form letter to coerce customers who filed a bankruptcy petition"
},
{
"docid": "19708459",
"title": "",
"text": "The plaintiffs also estimate that each of the three proposed classes would include at least 200 individuals. The defendants do not contest these figures. Based upon the plaintiffs’ estimates, the court agrees with Magistrate Judge Gottschall’s conclusion that these numbers suffice for the purposes of establishing numerosity. Classes much smaller in size than the proposed class in this case have been certified in this district. See, e.g., Rosario v. Cook County, 101 F.R.D. 659 (N.D.Ill.1983) (the court certified a class of twenty). Furthermore, the Magistrate Judge properly concluded that a review of the records of defendants’ thousands of insured plans would likely uncover many more potential class members whose participation would sufficiently increase the class size for the purposes of establishing numerosity. This court is entitled to make such common sense assumptions in order to support a finding of numerosity. Patrykus v. Gomilla, 121 F.R.D. 357, 360-61 (N.D.Ill.1988); Grossman v. Waste Management, Inc., 100 F.R.D. 781, 785 (N.D.Ill.1984). The defendants object to this decision because they contend that under ERISA each plaintiff only has standing to assert claims on behalf of members of his own plan. They claim that it is very likely that each plaintiff would be the only participant in his plan to submit a reimbursement claim for treatment of bipolar affective disorder and the requirement of numerosity thus would not be met. Here, the plaintiffs bring their suit under Section 502 of ERISA which permits a participant or a beneficiary to bring an action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future. benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). While the Seventh Circuit has recognized that ERISA is a comprehensive statute, the court has stated that it is not required “to give an unduly cramped reading to those provisions granting standing to certain classes of persons under the Act, i.e., participants, beneficiaries, and fiduciaries.” Sladek v. Bell System Management Pension Plan, 880 F.2d 972, 976 (7th Cir.1989). This court agrees with the"
}
] |
310001 | was not given to the plaintiffs prior to the filing of the petition and bond as required by the United States statutes. Section 72, title 28, U.S.C.(28 U. S.C.A. § 72). The motion is well taken. The courts of the United States have been divided on questions growing oiit of this statute and. the meaning and purpose of the giving of this notice. In one group of decisions ft has been said or implied that the design was but to advise the plaintiff of the removal and not to afford opportunity to the adverse party to be heard on the question of removability. Chase v. Erhardt (D.C.) 198 F. 305; Hansford v. Stone-Ordean-Wells Co. (D.C.) 201 F. 185; REDACTED Cropsey v. Sun Printing & Pub. Ass’n (D.C.) 215 F. 132. Another line of reasoning is that the purpose of the notice is to give an opportunity to the plaintiff to be present when the petition is presented so that he may appear to resist, if he so elects. Lee v. Continental Ins. Co. (D.C.) 292 F. 408; Loland v. Northwest Stevedore Co. (D.C.) 209 F. 626; Bank of America Nat. T. & S. Ass’n v. United States Nat. Bank (D.C.) 3 F.Supp. 990. The lower courts appear to be inclined in later decisions to follow this latter ruling, but the case of Williams v. New York, P. & N. R. Co., 11 F.(2d) 363, 45 A.L.R. 437, decided by the Circuit Court | [
{
"docid": "15187856",
"title": "",
"text": "a justice of said superior court for action thereon immediately. Gardner, Pirce & Thornley, Attys. for Deft.” It was served upon plaintiff’s attorney in the forenoon of Wednesday, March 11, 1914. In the afternoon of said day removal papers were presented to a judge of the superior court, and an order for removal to this court was made by said judge and filed with the petition and bond on March 12th, with the clerk of the superior court of Kent county. It is urged that the notice gave no information as to when or where the petition and bond would be presented to a judge of the superior court, and gave the plaintiff or his attorney, no opportunity to be present. It is contended that the purpose of the provision is that the adverse party shall be advised of the intention to file such a petition and bond, in order that he may have an opportunity to appear in the state court and resist the removal, if he so desires. It is also urged that since no time is fixed in the federal statute the practice, of the state court should govern, as stated in chapter 290, §§ 2 and 4, of the General Laws of Rhode Island, which provide for service of notice at least 48 hours before a motion is called for hearing. The petitioner relies upon Loland v. North Western Stevedore Co. (D. C.) 209 Fed. 626, and Chase v. Erhardt (D. C.) 198 Fed. 305. This provision was considered in Goins v. Southern Pacific Co. (D. C.) 198 Fed. 432, in United States v. Sessions, 205 Fed. 502, 123 C. C. A. 570, and in Wanner v. Bissinger & Co. (D. C.) 210 Fed. 96. It is argued that, as the notice is to be given prior to filing, this contemplates a hearing, and therefore a reasonable opportunity to prepare for attendance at the hearing. This, however, is merely inference, and not a necessary inference, and would work a considerable change from the former practice. Such change is not to be inferred unless clearly manifest. Judicial"
}
] | [
{
"docid": "14472030",
"title": "",
"text": "plaintiffs were advised in writing of defendants’ endeavor. Their counsel was in court, and defendants’ petition and bond were before him. Ample opportunity was afforded to be heard before the court accepted the petition and bond and directed the removal. The record shows that plaintiffs appeared to the rule, filed an answer and were heard. What more could they expect from a more literal compliance of the statute, if that were possible? They were afforded a hearing and careful consideration of their objections to the attempted removal. While the recited provision of the statute is imperative, it is not intended to operate as a hindrance or obstacle in the way of those seeking to avail themselves of the provisions of the statute. Its aim and purpose is to give the opposing party full and timely notice of the attempt to remove a suit brought, possibly to afford such an opportunity for hearing before the court accepts the petition and bond tendered. When this is done, all has been accomplished that was intended. Accordingly it was held that notice is unnecessary, where the motion was made upon dismissal as to resident defendant while all parties were in court (Byrne’s Adm’r v. Chesapeake & O. R. Co. [1913] 151 Ky. 553, 152 S. W. 538; where copy of the petition for removal was furnished counsel of record in the state court before the same was filed and notice was satisfactory to that court, the court to which the case was removed held it to be a sufficient compliance. Chase v. Erhardt [D. C.] 198 Fed. 305); and if, as stated in Cropsey v. Sun Printing & Publishing Ass’n [D. C.] 215 Fed. 132, “the main, if not the only, purpose of the statutory requirement as to notice is that the plaintiff be seasonably advised of the defendant’s intention to remove the cause,” this was accomplished by submitting to their attorney the petition and bond, recognized by him as shown in the acceptance of service of the rule to show cause thereon endorsed. The formal notice, consisting of the petition and bond, and"
},
{
"docid": "12912419",
"title": "",
"text": "court to the Circuit Court of the United States is statutory, and to effect a transfer of jurisdiction all the requirements of the statute must be followed.” We further said — “The provision is either mandatory or inoperative. There is no middle course. The mandate must be carried into effect or be practically destroyed.” See also Goins v. Southern Pacific Co., D.C.N.D.Cal., 198 F. 432; Loland v. Northwest Stevedore Co., D.C. Or., 209 F. 626; Arthur v. Maryland Casualty Co., D.C.Mass., 216 F. 386; In re Vadner, D.C.Nev., 259 F. 614; Tinker v. Board of Supervisors, D.C.N.D.Iowa, 292 F. 863; Partridge v. Bond, D.C.E.D.Va., 17 F.Supp. 257; Bluffton Real Estate Co. v. Wysong, D.C.E.D.S.C., 24 F.Supp. 344; Kelley’s Adm’r v. Abram, supra, D.C., 20 F.Supp. 229, 230. Since the giving of prior notice is mandatory under the statute, and it was neither given by the appellees nor waived by the appellant in this case, the action was not properly removed from the Tennessee Court to the U. S. District Court, and appellant’s motion to remand should be sustained. In accordance with the views expressed in our previous opinion in this case [6 Cir., 154 F.2d 881], and for the reasons indicated therein, we are of the opinion that the District Judge should have remanded the action to the State court without passing upon the motion to dismiss. Accordingly, the order of the District Court dismissing the action is reversed, and the action is remanded to the District Court for further proceedings consistent with this opinion."
},
{
"docid": "15730646",
"title": "",
"text": "DEWEY, District Judge. The above-entitled suit came, on for hearing at Des Moines, Iowa, on a motion to remand filed by the plaintiffs with briefs and a written agreement that the matter might be heard and decided by this court on such submission. The suit was transferred from the district court of Johnson county, Iowa, and the affidavits attached to the motion show that the petition for removal and bond were filed in said court and order of transfer made on the forenoon of May 4, 1936, and that written notice of the filing of said petition and bond was not served, if at all, on the plaintiffs or their attorney until the middle of the afternoon of the same date. Later, on June 2d, another notice was served on the plaintiffs, advising that the suit had been transferred to the federal court for the Southern District of Iowa. The motion to remand is on the ground that written notice was not given to the plaintiffs prior to the filing of the petition and bond as required by the United States statutes. Section 72, title 28, U.S.C.(28 U. S.C.A. § 72). The motion is well taken. The courts of the United States have been divided on questions growing oiit of this statute and. the meaning and purpose of the giving of this notice. In one group of decisions ft has been said or implied that the design was but to advise the plaintiff of the removal and not to afford opportunity to the adverse party to be heard on the question of removability. Chase v. Erhardt (D.C.) 198 F. 305; Hansford v. Stone-Ordean-Wells Co. (D.C.) 201 F. 185; Potter v. General Baking Co. (D.C.) 213 F. 697; Cropsey v. Sun Printing & Pub. Ass’n (D.C.) 215 F. 132. Another line of reasoning is that the purpose of the notice is to give an opportunity to the plaintiff to be present when the petition is presented so that he may appear to resist, if he so elects. Lee v. Continental Ins. Co. (D.C.) 292 F. 408; Loland v. Northwest Stevedore Co."
},
{
"docid": "12912415",
"title": "",
"text": "does not show any address to which the notice was mailed. Kansas City Life Ins. Co. v. Cox, 6 Cir., 104 F.2d 321, 325. Appellant concedes in her brief that the notice was received by mail, but it is not conceded that it was received prior to the filing of the petition for removal. Appellant’s motion to remand denies that the notice was given prior to filing the petition. The burden of proof on this issue rests upon the appellees. Wilson v. Republic Iron & Steel Co., 257 U. S. 92, 97, 42 S.Ct. 35, 66 L.Ed. 144. It has not been met. Appellees contend, however, that the statutory provision for notice is directory rather than mandatory and that substantial compliance with the same is sufficient. Kueck v. Northwestern Mutual Life Ins. Co., D.C.S.D.N.Y., 2 F.Supp. 400; Bank of America, etc. v. United States National Bank, D.C.S.D.Cal., 3 F.Supp. 990; Lewis v. Erie R. Co., D.C.M.D.Pa., 257 F. 868. There are also numerous rulings sustaining the view prevailing in many district courts that since the object of the statute is not to provide an opportunity to the adverse party to oppose the filing of the petition or order of removal, but is rather merely to inform him that the right of removal would be exercised, and this object is accomplished by literal-compliance with the provision, notice of the filing given at any time, however short, before the actual filing, is sufficient. Miller v. Southern Bell Tel. & Tel. Co., 4 Cir., 279 F. 806; Williams v. New York P. & N. R. Co., supra, 4 Cir., 11 F.2d 363, 365, 45 A. L. R. 437; Bagby v. Barton, 5 Cir., 131 F.2d 887; Kelley’s Adm’r v. Abram, D.C.E.D.Ky. 20 F.Supp. 229; Cropsey v. Sun Printing & Publishing Ass’n, D.C.N.J., 215 F. 132. Although this rule is contrary to the rule announced by other district courts that the notice should be sufficient to afford the adverse party an opportunity to be present at the presentation of the petition and bond and to be heard on the removability of the cause on"
},
{
"docid": "13526174",
"title": "",
"text": "cause removed accordingly.” The ground of the motion to remand was the shortness of the notice of the filing. In affirming the action of the lower court overruling the motion to remand it is said: “Formerly no notice of filing tbe petition and bond was necessary, and a cause might be removed without the plaintiff’s knowledge. Tbe object of tbe amendment, as we conceive, was not to -give opportunity to opposing the filing, ‘which no statute contemplates, but rather and merely to inform the adverse party or parties’ that the right of removal will be exercised, and this object is accomplished by literal compliance with the provision; that is, by notice at any time, however short, before the actual filing. * * * To hold otherwise is to lose sight of the distinction between notice of filing the petition aud bond, and notice of application for an order of removal. _ In this case the latter notice was given in full accordance as to time, and in other respects with the Code of South Carolina, and plaintiff cannot justly complain because the notice of filing was not served until just before the fact. This view harmonizes all parts of section 29 and 'gives consistency to the whole scheme of removal procedure.” I am proceeding in this opinion upon the idea that the filing of the removal papers in the state court called for by the section is the same as the presentation of same to that court and the application to it for an order of removal. The decisions,' then, which can be relied on as supporting defendant’s position, are those in the cases of Hansford v. Stone-Ordean-Wells Co., Potter v. General Baking Co., Cropsey v. Southern Printing & Publishing Co., and Hinman v. Barrett. In these opinions not much value is attached to the requirement of notice, and some uncertainty is revealed as to its purpose. The connection of the state court with the removal proceedings is looked upon as purely formal and perfunctory. In Hansford v. Stone-Ordean-Wells Co. it is said: “Whatever the purpose of notice, the Removal"
},
{
"docid": "15730648",
"title": "",
"text": "(D.C.) 209 F. 626; Bank of America Nat. T. & S. Ass’n v. United States Nat. Bank (D.C.) 3 F.Supp. 990. The lower courts appear to be inclined in later decisions to follow this latter ruling, but the case of Williams v. New York, P. & N. R. Co., 11 F.(2d) 363, 45 A.L.R. 437, decided by the Circuit Court of Appeals for the Fourth Circuit, again mixes the question. While that case holds that the written notice is not intended to give the plaintiff a chance to oppose either the filing of the petition or the removal, it further holds that, as the Judicial Code requirement is now expressed, a removal cannot be made without the knowledge of the adverse party. The question here, however, is not the purpose and intent of the giving of the notice, but whether such a notice shall be given before the filing of the petition and bond as required by the statute. The law says that it must be, and all the cases are unanimous in holding that the requirement is mandatory, except the case of Kueck v. Northwestern Mutual Life Ins. Co. (D.C.) 2 F.Supp. 400. I am unable to give my assent to the reasoning in that case, but the facts therein are different and not controlling here. „ It has been repeatedly held that, in the absence of such a notice, the suit must be remanded to the state court. Note 301, section 72, 28 U.S.C.A. The clerk will therefore enter the following order-: The above-entitled cause having come on for hearing at Des Moines, Iowa, on a motion of the plaintiffs to remand, and it being agreed that the same shall be determined on the briefs-and arguments as submitted, Said motion is sustained, and the clerk authorized and directed to remand the case to the court from which it was removed. Defendants except."
},
{
"docid": "9755924",
"title": "",
"text": "filing the same. This written notice appears to have been given in the present cause, and under the terms of the statute it would not appear that any further notice or application to the state court is required, either as a matter of law or comity, but any proper action in the cause should be taken by this court, without regard to any action of the state court. Hansford v. Stone-Ordean-Wells Co. (D. C.) 201 Fed. 185; Cropsey v. Sun Printing & Publishing Ass’n (D. C.) 215 Fed. 132. The next question is whether an application of the character now made to amend the petition for removal should be granted. An inspection of the record shows that the amendment sought to the petition is a very substantial one. The theory of the amendment proposed is that the complaint in the state court is brought to obtain a recovery under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. § 8657-8665]), and to obtain the benefit of that act; and the amendment now sought is one to introduce a new allegation of fact in the petition for removal filed in the state court to the effect that the party plaintiff was not an employe of the defendant and therefore not an employe, within the terms of the federal statute, and as such not entitled to the benefit of that statute, and the cause of action being between citizens of different states, the action is not within the inhibition of that statute, which forbids the removal from the stale court of actions brought under that statute. This would be an amendment of a substantial character, as interposing an allegation of fact denying an allegation in the complaint, which on the face it is apprehended will defeat a removal. The original petition for removal placed the ground for removal upon the sole fact that the-plaintiff and defendant were citizens of different states. This amendment proposes to introduce an allegation of fact which is matter of defense on the merits, to wit, that the plaintiff was not"
},
{
"docid": "9755923",
"title": "",
"text": "of the matter to the state court for an order of removal before any action is taken by this court is a mere matter of comity or curtesy, and not a matter of right; and if the case presented is one in which some action should be taken, and in the opinion of this court it has been properly removed, it is the duty of this court to take action upon the application, whether the state court has granted, or refused an order of removal, or whether or not any application for such an order has actually been made to it. Further, it is to be observed that the practice requiring application to the state court, and the decisions made thereunder, are very much affected by the requirement of the Judicial Code of 1911, § 29 (Act March 3, 1911, c. 231, 36 Stat 1095 [Comp. St. § 1011]), which prescribes that written notice of the petition and bond for removal shall lie given the adverse party or parties (not the state court) prior to filing the same. This written notice appears to have been given in the present cause, and under the terms of the statute it would not appear that any further notice or application to the state court is required, either as a matter of law or comity, but any proper action in the cause should be taken by this court, without regard to any action of the state court. Hansford v. Stone-Ordean-Wells Co. (D. C.) 201 Fed. 185; Cropsey v. Sun Printing & Publishing Ass’n (D. C.) 215 Fed. 132. The next question is whether an application of the character now made to amend the petition for removal should be granted. An inspection of the record shows that the amendment sought to the petition is a very substantial one. The theory of the amendment proposed is that the complaint in the state court is brought to obtain a recovery under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. § 8657-8665]), and to obtain the benefit of that act;"
},
{
"docid": "13526159",
"title": "",
"text": "merely by the filing of the petition in the clerk’s office. Whether this is sound on principle, as I have undertaken to show, the Supreme Court so held in the Minnesota case, and assumed in the Remington Case, and this is controlling. In view of it the notices were insufficient, in that the information which they gave as to defendant’s purposes was limited to filing the petitions and bonds in the clerk’s office, which, without more, would not avail to effect a removal. If, however, this is too narrow, a view to take of the notices, and they should be construed as meaning that after so filing they would be presented to the court or its judge for an order of removal, they were still insufficient, in that no statement was made in them as to when the presentation would be made to the court, or as to when and where the presentation would be made to the judge. This raises the question as to whether it is essential in order to the sufficiency of such a notice that the time when the petition and bond will be presented to the court or time when and place where it will be presented to the judge be given. The defendants contend that it is not, and ci,te a number of authorities in support of this position. The cases cited are as follows, to wit: Chase v. Erhardt (D. C.) 198 Fed. 305; Hansford v. Stone-Ordean-Wells Co. (D. C.) 201 Fed. 185; Potter v. General Baking Co. (D. C.) 213 Fed. 697; Cropsey v. Sun P. & P. Ass’n (D. C.) 215 Fed. 132; Hinman v. Barrett (D. C.) 244 Fed. 621; Miller v. Southern Bell Telephone Co. (C. C. A.) 279 Fed. 806. The third sentence of section 29, which provides for the notice, is in these words: “Written notice of said petition and bond for removal shall be given the adverse party or parties prior “to filing the same.” Possibly it may be open to say that there is some slight ambiguity here. What is meant by this? I take"
},
{
"docid": "9585964",
"title": "",
"text": "570, and Wanner v. Bissinger & Co. [D. C.] 210 Fed. 96), and perhaps jurisdictional in a limited sense (Goins v. Southern Pac. Co. [D. C.] 198 Fed. 432), in no wise changed the respective powers of the state and federal courts in that regard (Goins v. Southern Pac. Co., supra, and cases cited). Any objection that the plaintiff could have made to the papers while in the state court she can make here. She has therefore lost no opportunity “to be heard as to whether the petition and bond were ‘requisite.’” She can make such objections here, and here only they may be finally determined, regardless of any disposition the state court might make in the premises. Where a cause has been removed and falls within the act of Congress, it will not be remanded for irregularities which can be remedied and have worked no injury to the adverse party. Woolridge v. McKenna (C. C.) 8 Fed. 650, 667. The main, if not the only, purpose of the statutory requirement as to notice, is that the plaintiff be seasonably advised of the defendant’s intention to remove the cause. This the notice under consideration did. In Chase v. Erhardt (D. C.) 198 Eed. 305, the furnishing of plaintiff’s counsel with a copy of the petition for removal was deemed sufficient notice under this statute. In Hansford v. Stone-Ordean-Wells Co. (D. C.) 201 Fed. 185, the notice, accompanied by copies of the removal papers to be filed, was' served'on the day that such papers were filed. This was also held sufficient. No substantial right of the plaintiff as a suitor in the state court was or could have been invaded by the filing of the removal papers on a day between the date of serving such notice and that specifically named therein. In the present case, the notice given is not disserving of the statutory requirement, and the motion to remand is denied."
},
{
"docid": "12912418",
"title": "",
"text": "State court may have ruled, indicate rather clearly that the question of removability is to be decided in the Federal court rather than in the State court. See Kelley’s Adm’r v. Abram, supra; Holm v. Hickory Cane Mining Co., supra; Cropsey v. Sun Printing & Publishing Ass’n, supra. However, such a ruling does not dispose of the issue in this case where the record fails to show any notice at all prior to the filing of the petition and bond. The wording of the statute is very plain and unequivocal on that point. It specifically provides that the notice be given prior to the filing of the petition and bond. This Court has previously indicated its view that the provision is mandatory, although a direct ruling on the point was not required or given. United States v. Sessions, 6 Cir., 205 F. 502. In that opinion we quoted with approval the statement in Babbitt v. Clark, 103 U. S. 606, at page 610, 26 L.Ed. 507: “The right to remove a suit from a State court to the Circuit Court of the United States is statutory, and to effect a transfer of jurisdiction all the requirements of the statute must be followed.” We further said — “The provision is either mandatory or inoperative. There is no middle course. The mandate must be carried into effect or be practically destroyed.” See also Goins v. Southern Pacific Co., D.C.N.D.Cal., 198 F. 432; Loland v. Northwest Stevedore Co., D.C. Or., 209 F. 626; Arthur v. Maryland Casualty Co., D.C.Mass., 216 F. 386; In re Vadner, D.C.Nev., 259 F. 614; Tinker v. Board of Supervisors, D.C.N.D.Iowa, 292 F. 863; Partridge v. Bond, D.C.E.D.Va., 17 F.Supp. 257; Bluffton Real Estate Co. v. Wysong, D.C.E.D.S.C., 24 F.Supp. 344; Kelley’s Adm’r v. Abram, supra, D.C., 20 F.Supp. 229, 230. Since the giving of prior notice is mandatory under the statute, and it was neither given by the appellees nor waived by the appellant in this case, the action was not properly removed from the Tennessee Court to the U. S. District Court, and appellant’s motion to remand"
},
{
"docid": "13526171",
"title": "",
"text": "give the opposing party full and timely notice of the attempt to remove a suit brought, possibly to afford such opportunity for hearing before the court accepts the petition, and bond tendered. When this is done, all has been accomplished that was intended. * * * The formal notice, consisting of the petition and bond, and the rule fixing the time when the same would be taken up for aetion by the court, furnished the most substantial form of written notice to plaintiffs of the defendants’ intention to remove the cause and constitutes, both in letter and spirit, compliance with the provisions of the act.” How far the cases cited by defendant support their position that no such particularity is required may possibly be open to question. It is certain that most of them seem to favor it, and their reasoning is in that direction. In each case a motion to remand was overruled. What is said in Chase v. Erhardt is so meager that no further reference need be made thereto. In Hansford v. Stone-Ordean Wells Co. the notice was that defendant would on its date hie in the state court the petition and bond, copies_ of which were served therewith. In Potter v. General Baking Co. the notice was that the defendant was about to file the petition and bond in the state court, and that they would be presented to a justice of that court for action thereon immediately. In Cropsey v. Sun Printing & Publishing Ass’n the notice was given March 28, 1914, and was that petition and bond would be filed “on or before the 2d day of April, 1914.” They were filed on March 30, 1914. In Hinman v. Barrett the notice was that on a certain date immediately after its service the defendant would file petition and bond in the clerk’s office and at the same time apply for the approval of the bond. It did not state “when or where he would apply or to what judge.” It was said therein: “And a notice of intention to file a petition and bond"
},
{
"docid": "12912416",
"title": "",
"text": "object of the statute is not to provide an opportunity to the adverse party to oppose the filing of the petition or order of removal, but is rather merely to inform him that the right of removal would be exercised, and this object is accomplished by literal-compliance with the provision, notice of the filing given at any time, however short, before the actual filing, is sufficient. Miller v. Southern Bell Tel. & Tel. Co., 4 Cir., 279 F. 806; Williams v. New York P. & N. R. Co., supra, 4 Cir., 11 F.2d 363, 365, 45 A. L. R. 437; Bagby v. Barton, 5 Cir., 131 F.2d 887; Kelley’s Adm’r v. Abram, D.C.E.D.Ky. 20 F.Supp. 229; Cropsey v. Sun Printing & Publishing Ass’n, D.C.N.J., 215 F. 132. Although this rule is contrary to the rule announced by other district courts that the notice should be sufficient to afford the adverse party an opportunity to be present at the presentation of the petition and bond and to be heard on the removability of the cause on the papers present, if such is his desire (Lee v. Continental Ins. Co., D.C.E.D.Ky., 292 F. 408, and cases cited therein), we believe the rule as stated in Miller v. Southern Bell Tel. & Tel. Co., supra, is the better ruling, and that notice given prior to the filing of the petition and bond is sufficient regardless of how short the prior notice might be. There is nothing in the statute requiring that the prior notice be of any particular length of time before the filing of the petition and bond. The automatic removal of the action to the Federal court upon the filing of the proper petition and bond, the ability of the party seeking the removal to have the question of removability decided by the Federal Court by filing a transcript of the proceedings in the U. S. District Court regardless of the State Judge’s refusal to issue an order of removal, and the fact that the ruling of the Federal court on the question of removability is decisive regardless of how the"
},
{
"docid": "12516386",
"title": "",
"text": "71 [Judicial Code § 28] * * * may desire to remove such suit from a State court to the district court of the United States, he may make and file a petition * * * for the removal of such suit * * * and shall make and file therewith a bond. * * * Written notice of said petition and bond for removal shall be given the adverse party * * * prior to filing the same.” Judicial Code § 29, 28 USC § 72 (28 USCA § 72). It is undisputed that the petition and bond were filed in the morning and notice was not given until the afternoon. Plaintiff contends that this was fatal to the proceeding, as the statute requires that notice be given the adverse parties prior to the filing of petition and bond. The reason for this requirement is not readily apparent. The notice was given, and counsel for plaintiff appeared at the hearing and opposed the motion. All results that would flow from the order of service as prescribed by statute were apparently obtained; that is, knowledge of the proceedings and opportunity to oppose the same. The purpose of the notice is to give an opportunity to the plaintiff to be present when the petition is presented so that he may resist it. This is quite uniformly pointed out in the cases where the subject is discussed as in Lee v. Continental Insurance Co. (D. C.) 292 F. 408, 414, and eases there cited. A case similar in its essentials is Lewis v. Erie R. Co. (D. C.) 257 F. 868, where no formal notice was given, but the petition and bond were presented in the presence of counsel for plaintiff. A rule was entered to show cause at a fixed time why it should not be granted. The court says: “The record shows that plaintiffs appeared to the rule, filed an answer and were heard. What more could they expect from a more literal compliance of the statute, if that were possible? They were afforded a hearing and careful consideration of"
},
{
"docid": "13526160",
"title": "",
"text": "such a notice that the time when the petition and bond will be presented to the court or time when and place where it will be presented to the judge be given. The defendants contend that it is not, and ci,te a number of authorities in support of this position. The cases cited are as follows, to wit: Chase v. Erhardt (D. C.) 198 Fed. 305; Hansford v. Stone-Ordean-Wells Co. (D. C.) 201 Fed. 185; Potter v. General Baking Co. (D. C.) 213 Fed. 697; Cropsey v. Sun P. & P. Ass’n (D. C.) 215 Fed. 132; Hinman v. Barrett (D. C.) 244 Fed. 621; Miller v. Southern Bell Telephone Co. (C. C. A.) 279 Fed. 806. The third sentence of section 29, which provides for the notice, is in these words: “Written notice of said petition and bond for removal shall be given the adverse party or parties prior “to filing the same.” Possibly it may be open to say that there is some slight ambiguity here. What is meant by this? I take it that what is meant is what would have been meant, had the sentence read, “Written notice of the purpose to file said petition and bond shall be given the adverse party or parties prior to filing same.” So reading it, there is no express requirement that such definite information shall be given. The question, then, is whether such is the necessary implication. It seems to me that it is. The’ view that no such definite information is required belittles this requirement as to notice; and it seems to me that this belittling is the result of a belittling of the state court’s connection with the removal proceedings. I have already reached the conclusion that in order to effect a removal there must be at least a presentation of the petition and bond to the court; and, in the very nature of the case, upon such presentation there must be a hearing before it or him. It is true that the statute is imperative in prescribing that it shall be the duty of the state"
},
{
"docid": "4658366",
"title": "",
"text": "Congress in prescribing that the notice should be given “pri- or to filing” the petition and bond. In one group of decisions it has been said or plainly implied that the design was to- afford opportunity to the adverse party to be heard on the question of removability (Hansford v. Stone-Ordean-Wells Co. [D. C.] 201 F. 185, 187; Loland v. Northwest Stevedore Co. [D. C.] 209 F. 626, 627; Lewis v. Erie R. Co. [D. C.] 257 F. 868, 869; Lee v. Continental Ins. Co. [D. C.] 292 F. 408, 414, 419); in another, that it was merely seasonably to inform the adverse party that the right of removal would be exercised (Potter v. General Baking Co. [D. C.] 213 F. 697, 608; Cropsey v. Sun Printing & Publishing Ass’n [D. C.] 215 F. 132, 133, 334; Miller v. Southern Bell Telephone & Telegraph Co. [C. C. A.] 279 F. 806, 808). In either event, a construction of the statute that the right of removal would ho defeated by filing the papers less than an hour in advance of the service of notice of intention to file, is so highly technical that I feel it should not bo adopted, unless peremptorily demanded. I think that consideration of the statute as a whole indicates that the requirement as to the exact time of service of notice is directory, and that it is not jurisdictional. The giving of notice is undoubtedly essential. The statutoiy provision must undoubtedly be substantially lived up to. Where, however, as here, the adverse party has suffered no injury, there was at most -an unsubstantial variance (due possibly to miscalculation of mail deliveries or to some similar unanticipated exigency), the object of affording- notice was fully complied with, and the plaintiff refrained from, appearing in the state court to resist removal, there is not only no duty on the part of this court, but it is without authority, to send the case back to the state court. To- hold otherwise, I believe, would do violence to a common-sense application of the law. A removal proceeding is under the"
},
{
"docid": "15730647",
"title": "",
"text": "as required by the United States statutes. Section 72, title 28, U.S.C.(28 U. S.C.A. § 72). The motion is well taken. The courts of the United States have been divided on questions growing oiit of this statute and. the meaning and purpose of the giving of this notice. In one group of decisions ft has been said or implied that the design was but to advise the plaintiff of the removal and not to afford opportunity to the adverse party to be heard on the question of removability. Chase v. Erhardt (D.C.) 198 F. 305; Hansford v. Stone-Ordean-Wells Co. (D.C.) 201 F. 185; Potter v. General Baking Co. (D.C.) 213 F. 697; Cropsey v. Sun Printing & Pub. Ass’n (D.C.) 215 F. 132. Another line of reasoning is that the purpose of the notice is to give an opportunity to the plaintiff to be present when the petition is presented so that he may appear to resist, if he so elects. Lee v. Continental Ins. Co. (D.C.) 292 F. 408; Loland v. Northwest Stevedore Co. (D.C.) 209 F. 626; Bank of America Nat. T. & S. Ass’n v. United States Nat. Bank (D.C.) 3 F.Supp. 990. The lower courts appear to be inclined in later decisions to follow this latter ruling, but the case of Williams v. New York, P. & N. R. Co., 11 F.(2d) 363, 45 A.L.R. 437, decided by the Circuit Court of Appeals for the Fourth Circuit, again mixes the question. While that case holds that the written notice is not intended to give the plaintiff a chance to oppose either the filing of the petition or the removal, it further holds that, as the Judicial Code requirement is now expressed, a removal cannot be made without the knowledge of the adverse party. The question here, however, is not the purpose and intent of the giving of the notice, but whether such a notice shall be given before the filing of the petition and bond as required by the statute. The law says that it must be, and all the cases are unanimous in holding that"
},
{
"docid": "4658365",
"title": "",
"text": "71. That is conceded. It is further agreed that if there be a defect in the steps to accomplish the removal it consists only of the misadventure, in the execution of the plan of the Port Jervis attorneys, of the notice being handed to the Newburgh attorney fifty minutes subsequent to the county clerk at Goshen receiving and marking filed the documents transmitted to him. The issue is narrow. It turns exclusively on the significance to be ascribed to- the provision in the statute as to the lime for giving the notice. I have examined all the authorities'cited by counsel. I have also read such others as 1 have found having any hearing on the inquiry. None impress me as squarely in point here. So far as research has revealed, neither the Supreme Court of the United States nor the Circuit Court of Appeals for the Second Circuit has dealt with the matter. The question is therefore open in this eourt. I think no one can say with certainty what was the precise purpose of Congress in prescribing that the notice should be given “pri- or to filing” the petition and bond. In one group of decisions it has been said or plainly implied that the design was to- afford opportunity to the adverse party to be heard on the question of removability (Hansford v. Stone-Ordean-Wells Co. [D. C.] 201 F. 185, 187; Loland v. Northwest Stevedore Co. [D. C.] 209 F. 626, 627; Lewis v. Erie R. Co. [D. C.] 257 F. 868, 869; Lee v. Continental Ins. Co. [D. C.] 292 F. 408, 414, 419); in another, that it was merely seasonably to inform the adverse party that the right of removal would be exercised (Potter v. General Baking Co. [D. C.] 213 F. 697, 608; Cropsey v. Sun Printing & Publishing Ass’n [D. C.] 215 F. 132, 133, 334; Miller v. Southern Bell Telephone & Telegraph Co. [C. C. A.] 279 F. 806, 808). In either event, a construction of the statute that the right of removal would ho defeated by filing the papers less than an"
},
{
"docid": "13526177",
"title": "",
"text": "a matter of right.” In the case of Potter v. General Baking Co. it is said: “It is contended that the purpose of the provision is that the adverse party shall be advised of the intention to file such a petition and bond, in-order that he may have an opportunity to appear in the state court and resist the removal, if he so desires. * * * It is argued that, as the notice is to be given prior to the filing, this contemplates a hearing, and therefore a reasonable opportunity to prepare for attendance at the hearing. This, however, is merely inference, * * * and would work a considerable change from the former practice. Such change is not to be inferred unless clearly manifest. Judicial Code, § 294. Ordinarily the sufficiency in point of form of the petition and the sufficiency of the bond for removal have been matters upon which a hearing before the state court has not been required, and it is not necessary to infer, from the provision for ‘written notice of such petition -and bond prior to the filing,’ that notice is also required of the time of presentation of the petition and bond to the judge for the entry of an order for removal. It was doubtless the purpose of the amendment to give the adverse party prompt notice of the exercise of the right of removal, and it does not seem clear that the provision had any other purpose.” In Cropsey v. Sun Printing & Publishing Ass’n it is said: “Tie plaintiff does not disclose, and it is not apparent, what better purpose would have been served, or what greater advantage he would have gained, had the notice stated the exact time when such petition and bond were to be filed. If, as suggested, the legislative purpose was to ‘give the adverse party an opportunity to be heard as to whether the petition and bond were “requisite,” ’ that opportunity was as available to the plaintiff by the notice given as if the exact time when such petition and bond were to"
},
{
"docid": "12912417",
"title": "",
"text": "the papers present, if such is his desire (Lee v. Continental Ins. Co., D.C.E.D.Ky., 292 F. 408, and cases cited therein), we believe the rule as stated in Miller v. Southern Bell Tel. & Tel. Co., supra, is the better ruling, and that notice given prior to the filing of the petition and bond is sufficient regardless of how short the prior notice might be. There is nothing in the statute requiring that the prior notice be of any particular length of time before the filing of the petition and bond. The automatic removal of the action to the Federal court upon the filing of the proper petition and bond, the ability of the party seeking the removal to have the question of removability decided by the Federal Court by filing a transcript of the proceedings in the U. S. District Court regardless of the State Judge’s refusal to issue an order of removal, and the fact that the ruling of the Federal court on the question of removability is decisive regardless of how the State court may have ruled, indicate rather clearly that the question of removability is to be decided in the Federal court rather than in the State court. See Kelley’s Adm’r v. Abram, supra; Holm v. Hickory Cane Mining Co., supra; Cropsey v. Sun Printing & Publishing Ass’n, supra. However, such a ruling does not dispose of the issue in this case where the record fails to show any notice at all prior to the filing of the petition and bond. The wording of the statute is very plain and unequivocal on that point. It specifically provides that the notice be given prior to the filing of the petition and bond. This Court has previously indicated its view that the provision is mandatory, although a direct ruling on the point was not required or given. United States v. Sessions, 6 Cir., 205 F. 502. In that opinion we quoted with approval the statement in Babbitt v. Clark, 103 U. S. 606, at page 610, 26 L.Ed. 507: “The right to remove a suit from a State"
}
] |
106480 | HULBERT, District Judge. Respondent moves for an order sustaining exceptions to the libel and invokes the 22nd Rule in Admiralty following 28 U.S. C.A. § 723. It is the settled law that the owner of a shipyard who takes a vessel into his custody and control is a bailee. International Mercantile Marine S. S. Co. v. W. & A. Fletcher Co., 2 Cir., 296 F. 855; PanAmerican Petroleum Transportation Co. v. Robins Dry Dock & Repair Co., 2 Cir., 281 F. 97; REDACTED . 34 F.2d 100. Although the ultimate liability of the bailee must depend upon the establishment of negligence, Tomkins Cove Stone Co. v. Bleakley Transportation Co., 3 Cir., 40 F.2d 249, his failure to redeliver the vessel raises a presumption of negligence. Alpine Forwarding Co. v. Pennsylvania R. Co., 2 Cir., 60 F.2d 734. Motion denied. | [
{
"docid": "14402493",
"title": "",
"text": "the chattel to execute repairs on it and redeliver it to the owner, I apprehend that the bailee would be under the obligation to exercise reasonable care and skill in preserving the safety of the chattel. If he failed to deliver the chattel at all, the onus would be upon him to show that the nondelivery was not due to absence of care and skill on his part. Moreover, if he redeliver the chattel in a damaged condition,. or if during the bailment the chattel were damaged, so that when repaired it would be- redelivered damaged, the onus is upon the bailee to show that the damage was not due to the absence of reasonable care and skill on his part.” He then' continues: “If, then, the present ease were not complicated by the presence on the ship of some of the owners’ servants, there would seem to be a simple case of bailment, and an onus on the defendants to show that the fire was not caused by negligence on their part. How far is the position altered by the presence of the owners’ servants? I do not think that the rights reserved to the owners to retain the use of the vessel for certain purposes prevents the transaction from being one of bailment; but I think that the principle -of onus of proof must in such a case be modified though not destroyed.” In applying the rule he says: “A material question in this ease would appear to be: When did the fire originate ? If during the working hours, the onus would be upon the defendants to show that it was not occasioned by their negligence. If during nonworking hours, then the plaintiffs must discharge the onus of showing that injury was caused from defendants’ negligence.” Another case in which the rule is extended farther than in either of the two preceding eases is that of Pan-American Co. v. Robins Dry Dock Co., 281 F. 97 (C. C. A. 2d Circuit). That was a suit against a shipyard to recover damages occurring to libel-ant’s steamer by a"
}
] | [
{
"docid": "6908832",
"title": "",
"text": "court at first instructed the jury as follows: “Where a boat is chartered in good condition under a charter party, that requires the boat to be returned in the same condition as when received except for reasonable wear and tear, and it is returned in a damaged condition, there is a presumption of negligence against the charterer. This is, however, a disputable presumption, and it may bo overcome and overthrown by other evidence in the case which satisfies the jury to the contrary when all of the facts and circumstances in proof are considered. “If you find from a preponderance of all of the evidence that the barge was injured while in the exclusive possession of the fie-fondant, as bailee, then a presumption of negligence attaches by reason of such finding, if made, and in such event the defendant must show how the injury occurred and establish that it was free from negligence.” Of course, this went too far in placing upon the defendant the burden of showing “how the injury occurred,” for the presumption of negligence may be rebutted without necessarily doing that. To require it, would place the liability of’ the defendant, not on negligence alone as it is, Clark v. United States, 95 U. S. 539, 24 L. Ed. 518; Tomkins Cove Stone Co. v. Bleakley Transportation Co., Inc., et al. (C. C. A.) 40 F.(2d) 249, 250; Bushey v. Hedger (C. C. A.) 40 F.(2d) 417, 418, but on some added duty to prove itself omniscient respecting the injury as well as to rebut the presumption of negligence. The law on the subject was later correctly stated in the charge as follows: “If the jury find from a preponderance of all of the evidence that plaintiff’s barge was in tight, staunch, strong and seaworthy condition when delivered under charter to the Pennsylvania Railroad Company, and was damaged when returned to plaintiff, your verdict must be for the plaintiff, unless defendant shows either how the damage occurred, and, second, that none of defendant’s acts caused or contributed td that damage, or, first, everything it did with respect"
},
{
"docid": "13196365",
"title": "",
"text": "maritime contract. Can the parties to a maritime contract to repair a vessel validly stipulate that the repairer may be freed from the consequences of his negligent damage to the vessel in his custody for repairs? The appellant relies upon the case of Newport News Shipbuilding & Dry Dock Co. v. United States, 4 Cir.; 34 F.2d 100 and International M. M. S. S. Co. v. W. & A. Fletcher Co., 2 Cir., 296 F. 855, to support its claim that the exculpatory provision is valid. In the Newport News case the Circuit Court of Appeals for the Fourth Circuit considered the effect of an agreement on the part of the United States to maintain insurance contained in a contract for the repair of one of its vessels. The majority of the court held that under the agreement the shipyard was exempted from the loss due to its negligence in causing fire while the ship was undergoing repair to the extent of the agreement of the government to maintain fire insurance. Judge Parker dissented but all agreed that a contract could be made relieving the shipyard from liability for its negligence. Judge Parker in dissenting said [34 F.2d 109] : “While, of course, it is permissible to contract against liability for negligence, no contract ought to be construed to have that effect unless such intention clearly appears.”- Citing, McCormick v. Shippy, 2 Cir., 124 F. 48, 51, International M. M. S. S. Co. v. W. & A. Fletcher Co., 2 Cir., 296 F. 855. The majority said: “We agree with the judge below when he said: ‘There can be no doubt, I think, that a contract whereby the United States agreed to assume all liability for damage to its vessel while at the yard would be valid.’ ” Citing, Santa Fe Ry. Co. v. Grant Bros. Co., 228 U.S. 177, 33 S.Ct. 474, 57 L.Ed. 787. As this decision of the Fourth Circuit Court of Appeals is the only decision cited to us or found by us after a diligent search dealing with the question under consideration, we will consider"
},
{
"docid": "22362871",
"title": "",
"text": "see Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U. S. 310; Halcyon Lines v. Haenn Ship Corp., 342 U. S. 282, certainly it should lead us not to upset a practice of the shipping industry sanctioned by the courts most concerned with it. And if inferences are to be drawn from existing legislation, it may be significant that Congress’ careful regulation of freedom to limit liability in the case of public carriers of passengers or cargo (46 U. S. C. §§ 183c, 190-192, 1300-1308) is, either expressly or by virtue of the judicial “gloss” placed upon these sections, inapplicable to the usual tug-tow relationship. This suggests that, in the view of Congress, there is no overriding public policy requiring similar limitations in the field of private towage. This Court has not, to be sure, in every instance awaited congressional action before imposing views of public policy upon contracting parties. But it has limited its interference in the field of transportation to relationships between common carriers and their customers, concededly not the relationship before us. We have held that the towage relationship is even less than one of marine bailment, Stevens v. The White City, 285 U. S. 195, as to which, under the rulings of the lower fed eral courts, public policy does not invalidate exculpatory clauses. Newport News Shipbuilding & Dry Dock Co. v. United States, 34 F. 2d 100 (C. A. 4th Cir.); Hall-Scott Motor Car Co. v. Universal Ins. Co., 122 F. 2d 531 (C. A. 9th Cir.); see International Mercantile Marine S. S. Co. v. W. & A. Fletcher Co., 296 F. 855, 860 (C. A. 2d Cir.); Restatement, Contracts, §§ 574, 575. The considerations which have governed this Court’s role as arbiter of the public interest in exculpatory contracts were recently enunciated by the unanimous Court in the Sun Oil case. They bear repetition: “So far as concerns the service to be rendered under the agreement, respondent was not a common carrier or bailee or bound to serve or liable as such. Towage does not involve bailment .... There is no foundation in"
},
{
"docid": "22383927",
"title": "",
"text": "Co. v. Ellis, 54 F. 481, 483; Pacific Coast S. S. Co. v. Bancroft-Whitney Co., 94 F. 180; The Nordhvalen, supra, 886. If the bailee fails, it leaves the trier of fact free to draw an inference unfavorable to him upon the bailor’s establishing the unexplained failure to deliver the goods safely. Southern Ry. Co. v. Prescott, supra; cf. The America, 174 F. 724. Whether we label this permissible inference with the equivocal term “presumption” or consider merely that it is a rational inference from the facts proven, it does no more than require the bailee, if he would avoid the inference, to go forward with evidence sufficient to persuade that the non-existence of the fact, which would otherwise be inferred, is as probable as its existence. It does not cause the burden of proof to shift, and if the bailee does go forward with evidence enough to raise doubts as to the validity of the inference, which the trier of fact is unable to resolve, the bailor does not sustain the burden of persuasion which upon the whole evidence remains upon him, where it rested at the start. Southern Ry. Co. v. Prescott, supra; Kohlsaat v. Parkersburg & M. Sand Co., supra; Tomkins Cove Stone Co. v. Bleakley Co., 40 F. 2d 249; Pickup v. Thames Insurance Co., 3 Q. B. D. 594. Cf. Del Vecchio v. Bowers, 296 U. S. 280; Wigmore, op. cit., supra, §§ 2485, 2490, 2491, and cases cited. Proof of the breach of warranty of seaworthiness stands on no different footing. The trier of fact may in many situations infer the breach from the unexplained circumstance that the vessel, whether a common or private carrier, sank in smooth water. See The Edwin I. Morrison, supra; Work v. Leathers, 97 U. S. 379, 380; The Harper No. 145, 42 F. 2d 161; The Jungshoved, 290 F. 733; Barnewall v. Church, 1 Caines 217, 234; Walsh v. Washington Marine Insurance Co., 32 N. Y. 427, 436; Zillah Transportation Co. v. Aetna Ins. Co., 175 Minn. 398, 221 N. W. 529; and cases cited below, 114 F."
},
{
"docid": "13196366",
"title": "",
"text": "all agreed that a contract could be made relieving the shipyard from liability for its negligence. Judge Parker in dissenting said [34 F.2d 109] : “While, of course, it is permissible to contract against liability for negligence, no contract ought to be construed to have that effect unless such intention clearly appears.”- Citing, McCormick v. Shippy, 2 Cir., 124 F. 48, 51, International M. M. S. S. Co. v. W. & A. Fletcher Co., 2 Cir., 296 F. 855. The majority said: “We agree with the judge below when he said: ‘There can be no doubt, I think, that a contract whereby the United States agreed to assume all liability for damage to its vessel while at the yard would be valid.’ ” Citing, Santa Fe Ry. Co. v. Grant Bros. Co., 228 U.S. 177, 33 S.Ct. 474, 57 L.Ed. 787. As this decision of the Fourth Circuit Court of Appeals is the only decision cited to us or found by us after a diligent search dealing with the question under consideration, we will consider the authorities cited by the court as supporting its conclusion. International M. M. S. S. Co. v. W. & A. Fletcher Co., supra, deals with a contract for the repair of a vessel. The action was in admiralty and it was held that the shipyard was bailee. The damage was by fire. The question involved was whether the parties had contracted that the price quoted for the repair work did not cover any risk which could be covered by insurance. The Circuit Court of Appeals for the Second Circuit assumed, without deciding, that a contract giving the shipyard the benefit of the shipowners marine insurance would be valid but decided that no such contract was entered into. The other cases cited by the Circuit Court of Appeals for the Fourth Circuit in support of the assumption, Santa Fe Ry. Co. v. Grant Bros. Co., 228 U.S. 177, 33 S.Ct. 474, 57 L.Ed. 787, and McCormick v. Shippy, 2 Cir., 124 F. 48, 49, do not decide the question. McCormick v. Shippy, supra, dealt with a"
},
{
"docid": "16956697",
"title": "",
"text": "No. 1 be returned in the same condition as when it was received, less reasonable wear and tear, creates a case of prima facie negligence on the part of the respondents. Tomkins Cove Stone Co. v. Bleakley Transportation Co., Inc., 3 Cir., 40 F.2d 249, 251. - For as has been indicated while the burden of proving negligence is on the owner, the libellant after he has made out a prima facie case by the showing of the seaworthiness of the vessel, the charter or agreement to hire and the failure to return the same in the condition it was delivered, barring ordinary wear and tear, casts the burden of going forward, as it has been often phrased on the respondents, which is a requirement that he sufficiently explain this to meet the prima facie case so made out by the libellant. Have, therefore the respondents by competent testimony offered a sufficient explanation which would match the prima facie case of negligence, established by the libellant? If he has not so done, a situation is created, as Judge Woolley so aptly puts it in the Tomkins case, supra, “as though he stood mute facing the presumption”. Without going into any extensive review of the testimony covering the sinking of the barge on the 13th day of December, 1940, while being used by the respondents, I feel that the operation and management of the barge by them was careless and negligent and not due to any unseaworthiness of the Scow itself. I think the testimony firmly shows that an extensive strain was put on the Scow in the pulling of certain pilings and that the piling being pulled at the time was one which by reason of its depth caused too great a strain to- be exerted by the crane on the Scow, which resulted in its submersion. The testimony further shows that great difficulty was encountered in the removal of the piling, it having to be worked from side to side and that a great deal of force was required to dislodge it. I further feel that the evidence on"
},
{
"docid": "15405071",
"title": "",
"text": "when his efforts to save the vessel would have been futile. Appellants presented no hard evidence which would have allowed a reasonable trier of fact to accept one theory over the other. The acceptance of one thesis would thus have required the rejection of another equally probable theory, and the district court did not clearly err in declining to solve the case on the basis of mere conjecture or speculation. Under the preponderance of the evidence standard, appellants’ burden was to show that the absence of a watchman “more likely than not” caused the sinking, and they simply could not do so. Ill Responsibility for the loss of the WARRIOR cannot be established on the basis of the record presented before the district court. Simply stated, the trial court was not put in a position to determine the cause of the sinking. Its decision is therefore, Affirmed. . The shipyard has two sides, one for the construction of new ships and the other for the operation of a marina and storage facility; the two sides are separated by a pier operated by a third party. . The shipyard’s rate schedule provided, however, that: Although the yard maintains a shipbuilder’s liability policy covering accident or negligence on the part of the yard, the yard maintains night watchman service and takes every normal precaution for the safety and care of the boat. We cannot be responsible for fire, theft, vandalism, and damage. . Other courts have held that mere access to the vessel by the bailor or its agents prior to the damage or loss does not affect the presumption. See, e.g., Pan-American Petroleum Transportation Co. v. Robins Dry Dock & Repair Co., 281 F. 97 (2d Cir.1922) (that agents for the bailor were on board at the time the damage occurred did not change fact that bailee had exclusive possession of vessel under contract for repairs); Harrison Bros. Drydock v. J.R. Atkins, 193 F.Supp. 386 (S.D.Ala.1961) (same); Johnson's Branford Boat Yard v. The Yacht Altair, 260 F.Supp. 841 (D.Conn.1966) (same, where owner had visited and inspected the vessel the day of"
},
{
"docid": "22362872",
"title": "",
"text": "us. We have held that the towage relationship is even less than one of marine bailment, Stevens v. The White City, 285 U. S. 195, as to which, under the rulings of the lower fed eral courts, public policy does not invalidate exculpatory clauses. Newport News Shipbuilding & Dry Dock Co. v. United States, 34 F. 2d 100 (C. A. 4th Cir.); Hall-Scott Motor Car Co. v. Universal Ins. Co., 122 F. 2d 531 (C. A. 9th Cir.); see International Mercantile Marine S. S. Co. v. W. & A. Fletcher Co., 296 F. 855, 860 (C. A. 2d Cir.); Restatement, Contracts, §§ 574, 575. The considerations which have governed this Court’s role as arbiter of the public interest in exculpatory contracts were recently enunciated by the unanimous Court in the Sun Oil case. They bear repetition: “So far as concerns the service to be rendered under the agreement, respondent was not a common carrier or bailee or bound to serve or liable as such. Towage does not involve bailment .... There is no foundation in this case for the application of the doctrine that common carriers and others under like duty to serve the public . . . cannot by any form of agreement secure exemption from liability for loss or damage caused by their own negligence. . . . Respondent had no exclusive privilege or monopoly ... . There is nothing to suggest that the parties were not on equal footing or that they did not deal at arm’s length.” 287 U. S., at 294. These considerations of policy are equally present here and call for the result reached in Sun Oil. Nothing in the record hints at any inequality of bargaining power between the parties to this contract, nor is there any basis for taking judicial notice that the tug industry as an industry is in concentrated ownership. The towing service was here undertaken by a Government corporation. Certainly we cannot assume that the Government is exploiting the maritime services it is rendering in an unreasonable or coercive manner. Nor was it suggested that no tug company available"
},
{
"docid": "15405072",
"title": "",
"text": "are separated by a pier operated by a third party. . The shipyard’s rate schedule provided, however, that: Although the yard maintains a shipbuilder’s liability policy covering accident or negligence on the part of the yard, the yard maintains night watchman service and takes every normal precaution for the safety and care of the boat. We cannot be responsible for fire, theft, vandalism, and damage. . Other courts have held that mere access to the vessel by the bailor or its agents prior to the damage or loss does not affect the presumption. See, e.g., Pan-American Petroleum Transportation Co. v. Robins Dry Dock & Repair Co., 281 F. 97 (2d Cir.1922) (that agents for the bailor were on board at the time the damage occurred did not change fact that bailee had exclusive possession of vessel under contract for repairs); Harrison Bros. Drydock v. J.R. Atkins, 193 F.Supp. 386 (S.D.Ala.1961) (same); Johnson's Branford Boat Yard v. The Yacht Altair, 260 F.Supp. 841 (D.Conn.1966) (same, where owner had visited and inspected the vessel the day of the sinking); The English Whipple Sailyard v. The Yawl Ardent, 459 F.Supp. 866 (W.D.Pa.1978) (same, where owner and his family had slept on the yacht on one previous occasion and there was evidence that vessel had been under power on several occasions prior to its sinking). . There was considerable dispute at trial over whether the boatyard's failure to provide twenty-four hour watchman services constituted negligence. On the one hand, appellants argued that the yard's past practice, the value of the ships, the free access to the yard, and the fact that the yard advertised and charged overhead for night watchman services supported a finding of negligence against the appellee. On the other hand, appellee countered that lack of a night watchman cannot constitute negligence unless the conditions dictate the need for such a measure and that no such conditions existed here. The district court itself found that \"ordinary and reasonable care [did not] dictate that Goudy & Stevens employ a night watchman.” Given the grounds on which we base our decision, however, we need"
},
{
"docid": "23450539",
"title": "",
"text": "by Richmond — cast upon the bailee the ultimate burden of proving how the damage occurred. Thompson v. Chance Marine Const. Co., 4 Cir., 45 F.2d 584; Cummings v. Pennsylvania R. Co., 2 Cir., 45 F.2d 152. It is a rebuttable presumption whose sole effect is to shift to the bailee the burden of proceeding with the evidence. Commercial Molasses Corporation v. New York Tank Barge Corporation, 314 U.S. 104, 111, 62 S.Ct. 156, 86 L.Ed. 89; Alpine Forwarding Co. v. Pennsylvania R. Co., 2 Cir., 60 F.2d 734, certiorari denied 287 U.S. 647, 53 S.Ct. 93, 77 L.Ed. 559. There are, in general, two ways in which the bailee may rebut the presumption. He may show either how the disaster in fact occurred and that this was in no way attributable to his negligence, or that he exercised the requisite care in all that he did with respect to the bailed article so that, regardless of how the accident in fact transpired, it could not have been caused by any negligence on his part. The Dupont, D.C. 14 F.Supp. 193; see Bank v. Chas. Kurz Co., D.C., 69 F.Supp. 1017, 1018. The presumption is not evidence for the consideration of the jury, see Alpine Forwarding Co. v. Pennsylvania R. R., supra, 60 F.2d at page 736, and once rebutted in either of these fashions, disappears from the case. Waldie v. Steers Sand & Gravel Corporation, 2 Cir., 151 F.2d 129. It is thus solely a procedural device and does not in any way affect the ultimate burden of proving the bailee’s negligence, which burden remains throughout with the plaintiff-bailor. Commercial Molasses Corporation v. New York Tank Barge Corporation, supra; Seaboard Sand & Gravel Corporation v. American Stevedore, 2 Cir., 151 F.2d 846; The Dupont, supra. Tidewater has shown itself free of any negligence which might have caused the damage to the McGeeney. The evidence proved conclusively that Tidewater’s employees made frequent inspections of the McGeeney from the time she came into its possession until the leakage was discovered on the morning of the sixteenth. Tidewater produced as a witness"
},
{
"docid": "22662160",
"title": "",
"text": "a proximate cause of the loss. Underwriter’s best theory was the simple but awesome one of conversion: vessel delivered by Shipowner to Shipyard as bailee; Shipyard allowed one other than Shipowner to take her away. The rule has sound roots ashore and we agree with others, David Crystal, Inc. v. Cunard Steam-Ship Company, 1963, SDNY, 223 F.Supp. 273, 286, that it has sufficient buoyancy for admiralty as well. When clear precedents are lacking “in the law of the sea, admiralty judges often look to the law prevailing on the land * * * ” Igneri v. Cie. de Transports Oceaniques, 2nd Cir., 1963, 323 F.2d 257, 1963 AMC 2318. The trouble with this is that the bailment to Shipyard was not one giving it temporary complete dominion and control over the vessel. True, Estrada was little more than free boarder living on the ship with Shipowner’s leave. He did not have authority to navigate or move the vessel. But Shipowner allowed him to stay and in the absence of facts known to responsible persons of Shipyard concerning lack of authority it was not for Shipyard to question the operation and removal of the vessel by one left aboard by Shipowner. Under such circumstances the bailment obligation to redeliver under the conversion principle is modified to the extent the owner reserves — or from the bailee's viewpoint, appears to reserve — some control over the activity which operationally inflicts the harm. Stegemann v. Miami Beach Boat Slips, 5 Cir., 1954, 213 F.2d 561; Sisung v. Tiger Pass Shipyard Co., 5 Cir., 1962, 303 F.2d 318. And on this record, the factual qualifications inherent in this assessment are way above the Plimsoll mark of F.R. Civ.P. 52(a). On the negligence theories, Southport Transit Co. v. Avondale Marine Ways, 5 Cir., 1956, 234 F.2d 947, 1956 AMC 1498, we likewise conclude that the fact findings are warranted. Clearly the Shipyard is not to be held accountable just by what the two Hurtados knew. Perhaps it was a dereliction for them not to advise Zimmerman of the strange behavior which all can now see"
},
{
"docid": "16956696",
"title": "",
"text": "the court held in United States v. Shea, 152 U.S. 178, at page 189, 14 S.Ct. 519, at page 522, 38 L.Ed. 403: “No technical words are necessary to create a demise. It is enough that the language used shows an intent to transfer the possession, command, and control”. Here there can be no doubt at the time of the sinking of the vessel that the possession, command and control thereof was in the respondents. For upon the leaving by the Captain who had been in the libellant’s employ, there was no one in connection with the libellant who had anything to do with the Scow, and, accordingly, since the charter was a demise the respondents were the ownei's of the boat pro haec vice. The Johnson Lighterage Co. No. 24, D.C., 240 F. 435. The burden of proof to establish negligence is of course on the libellant, but the showing by the libellant of the contract to hire and the failure of the respondents to fulfill the conditions of the charter, that the Victor No. 1 be returned in the same condition as when it was received, less reasonable wear and tear, creates a case of prima facie negligence on the part of the respondents. Tomkins Cove Stone Co. v. Bleakley Transportation Co., Inc., 3 Cir., 40 F.2d 249, 251. - For as has been indicated while the burden of proving negligence is on the owner, the libellant after he has made out a prima facie case by the showing of the seaworthiness of the vessel, the charter or agreement to hire and the failure to return the same in the condition it was delivered, barring ordinary wear and tear, casts the burden of going forward, as it has been often phrased on the respondents, which is a requirement that he sufficiently explain this to meet the prima facie case so made out by the libellant. Have, therefore the respondents by competent testimony offered a sufficient explanation which would match the prima facie case of negligence, established by the libellant? If he has not so done, a situation is"
},
{
"docid": "23450538",
"title": "",
"text": "admiralty rule for division of damages, awarded Connecticut, as subrogee of Tidewater, the sum of $3,840.43, that being one-half of the amount Connecticut had paid to its insured, Tidewater. Both Connecticut and Richmond appeal from this portion of the judgment. In its libel for the damages to the McGeeney, Richmond relies upon the familiar rule in the law of bailments that a prima facie presumption of negligence on the part of the bailee arises from the bail- or’s proof that the bailed article was delivered in good condition and was returned damaged, or not returned at all. Seaboard Sand & Gravel Corporation v. Elmhurst Contracting Co., 2 Cir., 159 F.2d 860; The C. W. Crane, 2 Cir., 155 F.2d 940. Applying this principle, Richmond asserts that it is entitled to a verdict since it has proved that the McGeeney was in seaworthy state when delivered and that Tidewater has failed to explain how the disaster occurred. It is necessary that we consider briefly the effect of this presumption. The presumption does not — as suggested by Richmond — cast upon the bailee the ultimate burden of proving how the damage occurred. Thompson v. Chance Marine Const. Co., 4 Cir., 45 F.2d 584; Cummings v. Pennsylvania R. Co., 2 Cir., 45 F.2d 152. It is a rebuttable presumption whose sole effect is to shift to the bailee the burden of proceeding with the evidence. Commercial Molasses Corporation v. New York Tank Barge Corporation, 314 U.S. 104, 111, 62 S.Ct. 156, 86 L.Ed. 89; Alpine Forwarding Co. v. Pennsylvania R. Co., 2 Cir., 60 F.2d 734, certiorari denied 287 U.S. 647, 53 S.Ct. 93, 77 L.Ed. 559. There are, in general, two ways in which the bailee may rebut the presumption. He may show either how the disaster in fact occurred and that this was in no way attributable to his negligence, or that he exercised the requisite care in all that he did with respect to the bailed article so that, regardless of how the accident in fact transpired, it could not have been caused by any negligence on his part."
},
{
"docid": "16479716",
"title": "",
"text": "the hybrid nature of the suit because this case can be resolved on a narrower ground. Assuming without deciding under the Koch Fuels rationale that Concor-dia’s designation of the action as arising in admiralty did not necessarily control the entire action, we nonetheless conclude that Pa-nek waived his right to a jury by making a 9(h) election to proceed “In Admiralty” without making a demand for a jury in the counterclaim. To begin, Rule 9(h) applied to Panek’s counterclaim because his claims for breach of contract and negligence were saving-clause claims that could have been brought either in the district court’s supplemental jurisdiction or in admiralty. Panek’s contract with Con-cordia was sufficiently maritime in nature to fall within the district court’s admiralty jurisdiction. See Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 889, 6 L.Ed.2d 56 (1961) (marine insurance contracts); Carroll v. Protection Maritime Ins. Co., Ltd., 512 F.2d 4, 6 (1st Cir.1975) (contract between seamen and vessel owner); T.N.T. Marine Serv., Inc. v. Weaver Shipyards & Dry Docks, Inc., 702 F.2d 585, 587-88 (5th Cir.) (contract for repairs at shipyard), cert. denied, 464 U.S. 847, 104 S.Ct. 151, 78 L.Ed.2d 141 (1983). Panek’s negligence claim that Concordia’s lax security caused the fire or that its failure to prevent the PROWLER from sinking is also maritime in nature. See Butler v. American Trawler Co., Inc., 887 F.2d 20, 21 (1st Cir.1989) (“[Tjhere is admiralty jurisdiction if the tort at issue 1) occurred on navigable waters and 2) bore a significant relation to traditional maritime activities.”); Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268, 93 S.Ct. 493, 504, 34 L.Ed.2d 454 (1972) (holding that for the purposes of admiralty jurisdiction, a tort occurs where the negligence “takes effect,” not where the negligent act occurred). Consequently, the district court could have exercised jurisdiction over the counterclaims either under its “supplemental jurisdiction” pursuant to 28 U.S.C. § 1367, or admiralty, 28 U.S.C. § 1333, at least with respect to the breach of contract and negligence claims. Having concluded that Rule 9(h) could be invoked, we"
},
{
"docid": "22383928",
"title": "",
"text": "which upon the whole evidence remains upon him, where it rested at the start. Southern Ry. Co. v. Prescott, supra; Kohlsaat v. Parkersburg & M. Sand Co., supra; Tomkins Cove Stone Co. v. Bleakley Co., 40 F. 2d 249; Pickup v. Thames Insurance Co., 3 Q. B. D. 594. Cf. Del Vecchio v. Bowers, 296 U. S. 280; Wigmore, op. cit., supra, §§ 2485, 2490, 2491, and cases cited. Proof of the breach of warranty of seaworthiness stands on no different footing. The trier of fact may in many situations infer the breach from the unexplained circumstance that the vessel, whether a common or private carrier, sank in smooth water. See The Edwin I. Morrison, supra; Work v. Leathers, 97 U. S. 379, 380; The Harper No. 145, 42 F. 2d 161; The Jungshoved, 290 F. 733; Barnewall v. Church, 1 Caines 217, 234; Walsh v. Washington Marine Insurance Co., 32 N. Y. 427, 436; Zillah Transportation Co. v. Aetna Ins. Co., 175 Minn. 398, 221 N. W. 529; and cases cited below, 114 F. 2d 248, 251; Scrutton on Charter Parties and Bills of Lading (14th ed.) 105. Whether in such circumstances the vessel has the status of a private bailee is of significance only in determining whose is the burden of persuasion. Wherever the burden rests, he who undertakes to carry it must do more than create a doubt which the trier of fact is unable to resolve. The Edwin I. Morrison, supra, 212; The Folmina, supra, 363; Schnell v. The Vallescura, supra. The English courts, after some obscurity of treatment, see Watson v. Clark, 1 Dow 336, have reached the same conclusion. Pickup v. Thames Insurance Co., 3 Q. B. D. 594; Ajum Goolam Hossen & Co. v. Union Marine Insurance Co., [1901] A. C. 362, 366; Lindsay v. Klein, [1911] A. C. 194, 203, 205; see Constantine S. S. Line v. Imperial Smelting Corp., [1941] 2 All Eng. 165, 191-92. Proof of the sinking of the barge aided petitioner, but did not relieve it from sustaining the burden of persuasion when all the evidence was in."
},
{
"docid": "13196367",
"title": "",
"text": "the authorities cited by the court as supporting its conclusion. International M. M. S. S. Co. v. W. & A. Fletcher Co., supra, deals with a contract for the repair of a vessel. The action was in admiralty and it was held that the shipyard was bailee. The damage was by fire. The question involved was whether the parties had contracted that the price quoted for the repair work did not cover any risk which could be covered by insurance. The Circuit Court of Appeals for the Second Circuit assumed, without deciding, that a contract giving the shipyard the benefit of the shipowners marine insurance would be valid but decided that no such contract was entered into. The other cases cited by the Circuit Court of Appeals for the Fourth Circuit in support of the assumption, Santa Fe Ry. Co. v. Grant Bros. Co., 228 U.S. 177, 33 S.Ct. 474, 57 L.Ed. 787, and McCormick v. Shippy, 2 Cir., 124 F. 48, 49, do not decide the question. McCormick v. Shippy, supra, dealt with a contract between an owner and charterer of a pleasure yacht. It was held that the provision that the “charterer shall assume no responsibility for loss or damage to the yacht” was valid and not in conflict with public policy. The court said: “The clause must be interpreted to include loss through his negligence, because for loss not arising from negligence he would not be liable.” Because, as the court said: “The charterer of a vessel is a bailee for hire, and ‘is only responsible for ordinary diligence and is liable for ordinary negligence in the care of the property bailed.’ ” The case of Santa Fe Railway Co. v. Grant Bros. Co., supra, upholds a provision exculpating the Railway Company from its negligence, causing the death of an employee of a contractor who was being carried by the Railway Company under a private agreement of carriage incidental to the work of the contractor for the Railway Company. It thus appears that the authorities cited by the Circuit Court of Appeals for the Fourth Circuit in"
},
{
"docid": "13196364",
"title": "",
"text": "common-law court.” This rule was recognized by this court in Puget Sound Navigation Co. v. Nelson, 9 Cir., 41 F.2d 356, 357, Id., 9 Cir., 59 F.2d 697. That was an action at law brought to recover damages for loss of property resulting from a collision on the inland waters of Puget Sound. This court, speaking through Judge Rudkin, said: “While this action was tried on the common-law side of the court, the rights and liabilities of the parties are measured by the admiralty law, and not by common-law standards.” This view was reiterated on second appeal, Id., 9 Cir., 59 F.2d 697. We will therefore first consider the question as to whether the contract of January 4, 1940, is a maritime contract. It provided for the purchase of an engine and its installation in a boat which had long been in use upon navigable waters. A contract for repair of such a vessel is held to be a maritime contract. The V-14813, 5 Cir., 65 F.2d 789. It is clear that this was a maritime contract. Can the parties to a maritime contract to repair a vessel validly stipulate that the repairer may be freed from the consequences of his negligent damage to the vessel in his custody for repairs? The appellant relies upon the case of Newport News Shipbuilding & Dry Dock Co. v. United States, 4 Cir.; 34 F.2d 100 and International M. M. S. S. Co. v. W. & A. Fletcher Co., 2 Cir., 296 F. 855, to support its claim that the exculpatory provision is valid. In the Newport News case the Circuit Court of Appeals for the Fourth Circuit considered the effect of an agreement on the part of the United States to maintain insurance contained in a contract for the repair of one of its vessels. The majority of the court held that under the agreement the shipyard was exempted from the loss due to its negligence in causing fire while the ship was undergoing repair to the extent of the agreement of the government to maintain fire insurance. Judge Parker dissented but"
},
{
"docid": "14402491",
"title": "",
"text": "is important, because of the paucity of evidence of the cause of the fire. Although it was stated at the trial that witnesses were at hand, who were present in the room in which the fire started, they were not called by either party. The United States relied upon the answers to certain of the interrogatories which they duly offered in evidence, and the shipyard was content to leave ■the proof in this respect where the United States stopped. If the burden of the evidence was with the United States, and if to sustain that burden it was necessary that they should prove by clear and satisfactory evidence that the negligence of the shipyard was the proximate cause of the damage complained of, a much more difficult case is made than if the burden of proof is on the respondent to show that it was not negligent in the performance of the work. In the recently decided case of International M. S. S. Co. v. Fletcher Co., 296 F. 855 (C. C. A. 2d Circuit), which arose out of a fire on a vessel in a shipyard, Judge Hough, speaking for the court, announced the following as the applicable rule: “Undoubtedly the general rule is that negligence is never presumed, and he that alleges it must prove the same; yet where one receives a chattel in Certain condition, and redelivers it with marks of injury that only culpable negligence would probably cause, ‘it is the bailee who should open his mouth and make explanation to relieve himself’; and certainly slight evidence under such circumstances will shift the burden of evidence. Schouler, Bailments, § 23, and cases cited.” In an equally recent English case in the Court of Appeal (The Ruapehu, 21 Lloyd’s List Law Rep. 310) the question of the onus of proof, under circumstances very much like those present in this ease, was discussed with great learning, and the conclusion reached by Lord Justice Atkin as to the correct rule was as follows: “If this were a pure bailment, a delivery of a chattel to a bailee, intrusted with"
},
{
"docid": "14258747",
"title": "",
"text": "Carp. v. Tidewater Constr. Corp., 170 F.2d 392, 393 (4th Cir.1948) (“[A] prima facie presumption of negligence on the part of the bailee arises from the bailor’s proof that the bailed article was delivered in good condition and was returned damaged or not returned at all.”). In admiralty, a bailment most often occurs when two parties enter into an agreement to either store or repair a boat. See Snyder v. Four Winds Sailboat Centre, Ltd., 701 F.2d 251, 252-53 (2d Cir.1983); see also Goudy & Stevens, 924 F.2d at 18 (citing Buntin v. Fletchas, 257 F.2d 512, 513 (5th Cir.1958)). In order to demonstrate the existence of a bailment in these instances, the owner of the vessel show that “the delivery to the bailee is complete and he has exclusive right to possession of the bailed property, even as against the owner.” See T.N.T. Marine Service, Inc. v. Weaver Shipyards & Dry Docks, Inc., 702 F.2d 585, 588 (5th Cir.1988) (citing Continental Ins. Co. v. Washeon Corp., 524 F.Supp. 34, 37 (E.D.Mo.1981)); accord Snyder, 701 F.2d at 252 (requiring “exclusive custody of the boat”). As these and other decisions make clear, there is a distinction between an agreement to place a boat in dry dock for storage or repairs which is generally considered to be a bailment and an agreement to lease a slip at a marina which is not. See Security Nat’l Ins. Co. v. Sequoyah Marina, Inc., 246 F.2d 830, 833 (10th Cir.1957) (NO. 5530) (“[The defendant] was not legally in charge of the boat. It simply rented docking space to [the plaintiff] at its private dock. Their relationship was that of lessor and lessee, not bailor and bailee.”); Marino v. Gagliano, 50 Misc.2d 499, 270 N.Y.S.2d 934, 936-37 (N.Y.Sup.Ct.1966) (finding no bailment but, instead, only the privilege to moor one’s sailboat at a slip) (cited in Snyder, 701 F.2d at 252-53); see also Washeon, 524 F.Supp. at 37 (“[The plaintiff] had unrestricted access to the boat. [The defendant did not have a possessory interest in the boat. The evidence established a lessor-lessee relationship rather than a bailment"
},
{
"docid": "9928247",
"title": "",
"text": "bottom and extending upward through four planks. As shown by photographs the planks have the appearance of having been crushed or gouged out by contact with some hard, rough surface. To recover for such damage the present libel was brought against the charterer. Its answer denied its own negligence and asserted negligence on the part of the tug, which by petition the charterer sought to implead; 'but process was not served on the tug and it never became a party to this suit. Instead, the owner and operator of the tug instituted a limitation proceeding in which Dobbins-Trinity Coal Co., Inc., filed a claim. Howard, however, did not. The two suits were tried together by agreement but not as a consolidated cause. The trial judge made findings of fact and wrote an opinion. Howard’s libel was dismissed with costs, and he has appealed. By concession the libellant proved delivery in good condition and return by the charterer in damaged condition. He thereby made a prima facie case and became entitled to the benefit of a presumption of fault by the bailee or by those to whom it had entrusted the barge. The burden then rested upon the bailee to go forward with evidence to overcome the presumption by showing that the damage was not caused by its negligence or the negligence of those for whose conduct it was responsible. Alpine Forwarding Co. v. Pennsylvania R. Co., 2 Cir., 60 F.2d 734, certiorari denied 287 U.S. 647, 53 S.Ct. 93, 77 L.Ed. 559; O’Boyle v. United States, 2 Cir., 47 F.2d 585; Ira S. Bushey & Sons v. W. E. Hedger & Co., 2 Cir., 40 F.2d 417. It attempted to do this by the depositions of the bargee and his wife and by the testimony in court of the master of the tug Russell IV. This evidence localized the time and place of the injury to the barge. It established that when off 75th Street on her final voyage the bargee took soundings and found the barge practically dry. She was the port hawser boat in a tow of three"
}
] |
626065 | court may bifurcate a single-count felon-in-possession trial absent the government’s consent. Its resolution will affect numerous defendants in similar trials and will aid in the administration of criminal justice. Moreover, no remedy is available to the government other than mandamus. Were Amante to prevail at the first phase of a bifurcated trial, double jeopardy will have attached, and the government will be precluded from appealing his acquittal. See U.S. const. amend. V; 18 U.S.C. § 3731. Likewise, if the government were to secure a conviction, any appeal would be moot and any alleged error would necessarily be harmless. Turning to the merits of the petition, the government argues that the district court abused its discretion in ordering the bifurcation, citing REDACTED United States v. Belk, 346 F.3d 305 (2d Cir.2003), and United States v. Chevere, 368 F.3d 120 (2d Cir.2004) (per curiam), in direct support of its position. Amante’s basic contention is that the bifurcation of the elements would “impart a layer of fairness,” and that he would be unfairly prejudiced if the government were permitted to present evidence of his earlier conviction prior to or at the same time as the other elements of the offense. We agree with the government that the district court abused its discretion. While it is possible that bifurcation of a single-count felon-in-possession trial might be appropriate in an “extraordinarily unusual case,” Belk, 346 F.3d at 311, such as where the facts of the prior felony | [
{
"docid": "1264636",
"title": "",
"text": "affirmed the district court’s denial of defendant’s motion to stipulate to the obscenity element of the crime of sending obscene materials through the mail in violation of 18 U.S.C. § 1461 (1982). Ganzter argued that the admission into evidence of the photographs themselves was not necessary if he stipulated to their obscenity. We found, however, that “the obscenity of the photographs Gantzer mailed was a critical element of the crime charged.” Gantzer, 810 F.2d at 351. We contrasted Gantzer with United States v. Borello, 766 F.2d 46 (2d Cir.1985), where we reversed the admission of prejudicial evidence of the obscene nature of illegally imported material. The difference was that the obscene nature of the imported material was not a “critical element” of the charges faced by the defendant in Borello. Gantzer, 810 F.2d at 351. Gilliam’s prior conviction is a “critical element” of § 922(g)(1) that cannot be divorced from the crime. It is telling that every circuit court that has considered the issue has decided it similarly. In United States v. Collamore, 868 F.2d 24 (1st Cir.1989) (in banc), the First Circuit granted a writ of mandamus to the government to prevent the district court from bifurcating a trial for violation of the predecessor statute to § 922(g)(1). The district court intended to allow the jury to decide the possession issue and then return to hear evidence on the prior conviction element if the jury found posses sion. The basis for the First Circuit’s decision was the same as the district court’s in this case: “when a jury is neither read the statute setting forth the crime nor told of all the elements of the crime, it may, justifiably, question whether what the accused did was a crime.” Id. at 28. Similarly, the Third Circuit upheld a district court’s refusal to force the government to accept a stipulation, stating that it “perceive[d] no authority for counsel or the court to modify a criminal statute enacted by Congress by eliminating through stipulation one of the elements of the crime.” United States v. Williams, 612 F.2d 735, 740 (3d Cir.1979), cert."
}
] | [
{
"docid": "3349728",
"title": "",
"text": "bifurcated at all, other decisions of the Ninth Circuit limit that principle to cases involving only a single felon-in-possession charge. See United States v. Nguyen, 88 F.3d-812, 817-18 (9th Cir.1996). We need not reach that issue to decide this case, however, since we conclude that here the district court did not abuse its discretion in refusing to bifurcate. As the district court pointed out, the jury was going to learn about Moore’s felony conviction apart from the felon-in-possession charge. Investigators originally linked Moore to the bank robbery through Jewell. Jewell had purchased the handgun used in the bank robbery for Moore because Moore was precluded from doing so as a convicted felon. In developing these facts, the prosecution necessarily and inevitably would refer to Moore’s felony conviction. Because that conviction was independently relevant to the proof of the bank robbery charges, the district court did not abuse its discretion in refusing to bifurcate the felon-in-possession count. See Fed. R.Evid. 404(b) (“Evidence of other crimes ... may ... be admissible ... as proof of ... intent, preparation, [or] plan cf. United States v. Clark, 184 F.3d 858, 868, 866 (D.C.Cir.1999) (holding that a district court did not abuse its discretion in refusing to sever a felon-in-possession charge from other charges where “proof of each crime would have been admissible in the separate trials”). B. Moore contends that various references at the trials to his prior felony conviction denied him fair trials and that the district court should have declared mistrials when those references were made. 1. In his opening statement, the prosecutor told the jury that they would “hear [about] a stipulation ... that [Moore] ha[d] been convicted of a felony.” The prosecutor is also alleged to have made similar references in his closing and rebuttal statements. We doubt that the references were improper. Because the stipulation made it unnecessary for the prosecution to prove an essential element of the crime, the prosecutor properly disclosed this fact to the jury. Moreover, the prosecutor’s reference to Moore’s prior felony conviction was no broader than necessary to accomplish its purpose. Indeed, after disclosing"
},
{
"docid": "1312547",
"title": "",
"text": "JOSÉ A. CABRANES, Circuit Judge. Defendant Charles Belk appeals from a judgment of conviction entered on October 23, 2002, in the United States District Court for the Southern District of New York (Laura Taylor Swain, Judge), after a jury trial in which he was found guilty of one count of unlawful possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the Court found that he had been convicted of three prior violent felonies and sentenced him primarily to 235 months’ imprisonment under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). On appeal, defendant asserts that the District Court abused its discretion by refusing to bifurcate his trial so that the jury could consider separately (i) whether he was in unlawful possession of a firearm and (ii) whether he had previously been convicted of a felony. He argues that bifurcation was required so that the jury would not prejudicially learn of Belk’s status as a convicted felon until it first addressed the sole disputed issue at trial— whether he had possessed a firearm. Defendant also asserts that he should be resentenced because the District Court misunderstood its authority to depart downwardly. We hold that a district court does not err when it refuses to bifurcate a defendant’s jury trial to provide for separate consideration of the elements of a felon-in-possession charge. We also reject defendant’s challenge to his sentence. I. Background The Government charged defendant in a one-count indictment, alleging that he had unlawfully possessed a firearm on September 13, 2000, after having been previously convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The Government also alleged that he had been convicted of three prior violent felonies, thereby rendering him subject to a mandatory prison term of not less than 15 years under the ACCA, 18 U.S.C. § 924(e). Defendant did not contest that he had been convicted of a prior felony for the purposes of 18 U.S.C. § 922(g)(1) and, before trial, the parties agreed to a stipulation as follows: Charles Belk, the defendant,"
},
{
"docid": "3349726",
"title": "",
"text": "alleged prejudicial effect the introduction of evidence relating to his prior conviction could and would have on the jury. He proposed that the jury should determine only whether he possessed a handgun, and that only if the jury found that he had would his felony conviction be introduced. The district court ultimately denied that motion, reasoning that since his criminal history was relevant to the other charges, his prior conviction would inevitably be disclosed to the jury; therefore, reference to it in connection with the gun possession charge would not prejudice Moore. Moore then stipulated to his prior conviction. The determination whether to bifurcate a particular count lies within the discretion of the district court, and we review a refusal to bifurcate for abuse of discretion. Several other circuits have held that a district court’s decision against bifurcating a felon-in-possession count is reviewed for abuse of discretion. See, e.g., United States v. Belk, 346 F.3d 305, 310 (2d Cir.2003) (“[A] district court’s exercise of its discretion in refusing to bifurcate the elements of a [felon-in-possession] charge is not reversible error.”), cert. denied, - U.S. -, 124 S.Ct. 1474, 158 L.Ed.2d 126 (2004); United States v. Mangum, 100 F.3d 164, 171 (D.C.Cir.1996) (“[W]e find that the district court did not ... abuse its discretion by deciding not. to bifurcate the ex-felon element and the other elements of [the felon-in-possession count].”). In an unpublished decision, United States v. Underwood, Nos. 95-5441/95-5442, 1996 WL 536796, 1996 - U.S.App. LEXIS 24995 (6th Cir. Sept. 20, 1996), this court, in upholding a district court’s refusal to bifurcate the possession and felony elements of felon-in-possession counts, “adopted [the] rule” of the Ninth Circuit in United States v. Barker, 1 F.3d 957 (9th Cir.1993), amended by 20 F.3d 365 (1994). There, in reversing a district court’s bifurcation of the two'elements of a felon-in-possession count, the Ninth Circuit “h[e]ld that the district court may not bifurcate the single offense of being a felon in possession of a firearm into multiple proceedings.” Id. at 959. Although Barker appears to announce the rule that a felon-in-possession count “may not” be"
},
{
"docid": "16279757",
"title": "",
"text": "conviction if defendant were to stipulate, outside the jury’s presence, that (1) he had been convicted of a felony prior to March 28, 2003, and (2) he would be guilty of violating § 922(g)(1) if the Government were to prove that on March 28, 2003, he possessed a firearm in or affecting interstate commerce. In other words, if defendant would stipulate to the District Court that he is a felon, the jury would not be told that defendant is a felon, and would simply decide the issue of possession. On October 16, 2003, the District Court endorsed, by order, a stipulation between the parties that recited these terms, but which reserved the Government’s right to challenge the order on appeal. The Government then filed an interlocutory appeal pursuant to 18 U.S.C. § 3731, arguing that the jury was entitled to hear evidence that defendant had a prior felony conviction. The District Court granted a stay of trial pending resolution of the appeal. In light of our decisions in United States v. Gilliam, 994 F.2d 97 (2d Cir.1993), and United States v. Belk, 346 F.3d 305 (2d Cir.2003) — the latter decided one week before the District Court’s October 16, 2003 ruling — we hold that a district court has no discretion, in a prosecution under § 922(g)(1), to allow a defendant to stipulate to a prior conviction and thereby entirely withhold that element of the offense from the jury’s consideration. Although a defendant may, by stipulating that he has a prior felony conviction, prevent the jury from hearing about the nature or underlying facts of the conviction, he may not prevent the jury from learning the fact that he has a prior felony conviction — a “crucial element” of the offense. See Gilliam, 994 F.2d at 103. In Gilliam, we held that a district court did not err by refusing to accept a defendant’s proposal to concede the prior conviction element under § 922(g)(1) and thereby keep the fact of his prior conviction from the jury. 994 F.2d at 98. We stated that, “[wjhere the prior conviction is essential to"
},
{
"docid": "11524219",
"title": "",
"text": "from precluding the admission of evidence of prejudicial facts. Nguyen has presented no evidence that the introduction of the prior conviction prejudiced the conspiracy case. Furthermore, as previously discussed, the jury was given a limiting instruction on the prior conviction on two separate occasions. Nguyen has failed to show that he is a member of a suspect class or that there has been a violation of a fundamental right. Plyler v. Doe, 457 U.S. 202, 217, 102 S.Ct. 2382, 2395, 72 L.Ed.2d 786 (1982). There, the rule prohibiting bifurcation of the possession of a gun element from the felon status element will be upheld upon a showing of \"some fair relationship to a legitimate public purpose.\" Id. at 216, 102 S.Ct. at 2394. There are various legitimate reasons for not allowing bifurcation of the offense of being in possession of a firearm into separate proceedings. First of all, the \"government would be precluded from proving an essential element of the charged offense, and the district court would breach its duty to instruct the jury on all the essential elements of the crime charged.\" United States v. Barker, 1 F.3d 957, 959 n. 3 (9th Cir.1993) (footnote omitted). Secondly, \"the district court's bifurcation order might unfairly confuse the jury, prompting it to exercise its power of nullification on the unwarranted belief that the defendant was charged for noncriminal conduct.\" Id. Additionally, separate proceedings would put a strain on judicial economy and require additional resources for du-plicative proceedings. The district court did not abuse its discretion by denying Nguyen's motion to bifurcate the two issues. III Nguyen argues that the district court abused its discretion when it allowed the government to introduce the Bryco handgun which Nguyen was alleged to have possessed. We review for abuse of discretion the district court's admission of evidence. United States v. Pappadopoulos, 64 F.3d 522, 529 (9th Cir.1995). Just prior to trial, the government clis-closed for the first time that it had recovered a Bryco pistol in San Francisco on June 14, 1994, in another unrelated case. Agent Trinh did not learn of the discovery until"
},
{
"docid": "16279762",
"title": "",
"text": "bifurcation in some unforeseeable “extraordinarily unusual case,” we did not invite district courts in prosecutions under § 922(g)(1) to prevent juries from considering the prior-conviction element. Our refusal to announce a per se rule against bifurcation is fully consistent with our articulation, in this case, of a per se rule against removing from the jury’s consideration the fact of a prior conviction. In a bifurcated trial of a felon-in-possession charge — assuming that there may indeed be some circumstance in which bifurcation is appropriate — the jury would at least be informed that the charge involved something more than possession, and would, if possession was found, then consider the second element of a prior felony conviction. In contrast, under the stipulation adopted by the District Court in the instant case, the jury would consider possession, unaware of any other element of the offense, and would be stripped of its responsibility to consider both elements. We therefore conclude that, in a prosecution under § 922(g)(1), there are no circumstances in which a district court may remove the element of a prior felony conviction entirely from the jury’s consideration by accepting a defendant’s stipulation to that element. Finally, defendant’s counsel urges for the first time at oral argument that this Court should, as an alternative to affirming, remand the case to the District Court with instructions to hold a bifurcated trial Defendant’s argument seems to be that bifurcation is appropriate here because, if he were tried on the issue of possession, the credibility of his trial testimony would be the central issue, and the jury would give undue weight to his prior felony conviction in assessing his credibility. We decline to order bifurcation simply because the defendant’s credibility would be an issue at trial. This is not the “extraordinarily unusual case” in which, under Belk, bifurcation “could possibly be appropriate.” 346 F.3d at 311. The order of the District Court is hereby Vacated and the cause is Remanded for further proceedings consistent with this opinion. . 18 U.S.C. § 922(g)(1) makes it a crime for \"any person who has been convicted in"
},
{
"docid": "18828774",
"title": "",
"text": "BEEZER, Circuit Judge: A grand jury in the District of Oregon indicted Alvin Barker for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Through a motion in li-mine, Barker requested bifurcation of his trial. Specifically, he moved to bifurcate the “possession” element of the crime from the “felon” element of the crime. The district court granted Barker’s motion to bifurcate; the United States appeals the district court’s order pursuant to 18 U.S.C. § 3731, or in the alternative, through a petition for mandamus, 28 U.S.C. § 1651(a). We grant the petition for mandamus, reverse the bifurcation order, and remand for further proceedings. I Immediately prior to his trial for being a felon in possession of a firearm, Barker filed an “In Limine Motion to Bar the Government From Proving Defendant’s Prior Felony Conviction and to Strike the Reference to the Felony Conviction from the Indictment.” Barker argued that he would be prejudiced by the evidence of his prior conviction. The government agreed to stipulate to Barker’s felony status but argued that the jury should be instructed on all elements of the crime. The district court granted Barker’s motion. As trial procedure, the district court decided to instruct the jury that “the parties have agreed that mere possession [of the firearm] is criminal in this ease and it is not for [the jury] to decide the wisdom of such a law.” If the jury convicted Barker absent the felony element, Barker would then stipulate to the prior felony conviction. Under this scheme, the indictment would not (and indeed could not) be read to the jury. After ruling on the motion, the district court began jury selection. Before the jury had been sworn, the government informed the court that it wished to appeal the bifurcation order. At the government’s request, the district court granted a stay of trial pending-appeal. We granted Barker’s motion to expedite the appeal. II 18 U.S.C. § 3731 provides in pertinent part: An appeal by the United States shall lie to a court of appeals from a decision or order of"
},
{
"docid": "23208402",
"title": "",
"text": "§ 922(g)(1) count and instruct the district court to dismiss that count of the indictment. See, e.g., Travisano, 724 F.2d at 347-48 (felon in possession conviction reversed where government conceded it could not establish that shotgun traveled in interstate commerce after its manufacture). II. Failure to Sever or Bifurcate the Felon in Possession Charge Jones claims that the district court should have severed or bifurcated the felon in possession of a firearm count to avoid unfair prejudice. In the same vein, he contends that the court’s charge on this point highlighted the fact of conviction, escalating the prejudice to Jones. Finally, Jones asserts that, because the evidence on the interstate commerce element was insufficient, his convictions on the first three counts are tainted by “retroactive misjoinder.” The denial of a severance motion is reviewed for abuse of discretion, “and will not be overturned unless the defendant demonstrates that the failure to sever caused him ‘substantial prejudice’ in the form of a ‘miscarriage of justice.’ ” United States v. Blakney, 941 F.2d 114, 116 (2d Cir.1991) (citations omitted). Jones contends that the “drastically differing results” at his first and second trials eliminate the need to speculate about the unfair prejudice stemming from proof of Jones’s criminal past. Because of the inevitable spillover effect occasioned by proof of Jones’s tawdry record, he argues that the district court should have severed or, at least, bifurcated the felon in possession count. We agree. Courts have held that joinder of an ex-felon count with, other charges requires either severance, bifurcation, or some other effective ameliorative procedure. See, e.g., United States v. Joshua, 976 F.2d 844 (3d Cir.1992) (bifurcated trial is appropriate when government joins felon in possession count with other charges and proof of felony would not be admissible at trial on other counts); United States v. Dockery, 955 F.2d 50 (D.C.Cir.1992) (district court abused its discretion in failing to grant bifurcated trial or to fashion other procedures sufficient to curb prejudice from inclusion of ex-felon count); United States v. Desantis, 802 F.Supp. 794, 803 (E.D.N.Y.1992) (court ordered severance of ex-felon count because of manifest"
},
{
"docid": "744885",
"title": "",
"text": "985 F.2d 65, 70 (2d Cir.1993). In light of these observations, we cannot say that the District Court erred by declining to adopt an approach that would have decreased sentencing disparities between Johnson and any similarly-situated state defendant but increased sentencing disparities between Johnson and any similarly-situated federal defendant prosecuted in different states. We join the Fourth, Seventh and Tenth Circuits in reaching this conclusion. See United States v. Clark, 434 F.3d 684, 687-88 (4th Cir.2006); United States v. Wurzinger, 467 F.3d 649, 653-54 (7th Cir.2006); United States v. Branson, 463 F.3d 1110, 1112-13 (10th Cir.2006). We now turn to Johnson’s remaining claims. Johnson’s first claim — that the District Court erred by declining to bifurcate his trial — is without merit. See United States v. Amante, 418 F.3d 220, 224 (2d Cir.2005) (“Where the government agrees to stipulate [to] the fact of the prior felony without going into the underlying facts, there can be no unfair prejudice justifying bifurcation.”); United States v. Belk, 346 F.3d 305, 310 (2d Cir.2003) (observing that a district court’s exercise of its discretion in refusing to bifurcate the elements of a § 922(g)(1) charge is not reversible error). The same is true of his argument that it was error for the District Court to give a jury instruction that included an observation about the fact of Johnson’s prior felony conviction. In Belk, we noted with approval our prior holding that “the defendant in a § 922(g)(1) trial” had been shielded from undue prejudice where the trial court gave a “proper curative instruction explaining to the jury that it may only use proof of the prior conviction to satisfy the prior-conviction element of the crime” and “the ... evidence of [the defendant’s] prior conviction [was] narrowly tailored to the fact of the conviction itself.” 346 F.3d at 311 (discussing United States v. Gilliam, 994 F.2d 97, 100 (2d Cir.1993)). The jury that tried Johnson received a curative instruction similar in content to the instruction given in Gilliam; and, although the stipulation presented to the jury did describe the nature of Johnson’s prior offense, this description"
},
{
"docid": "1312548",
"title": "",
"text": "disputed issue at trial— whether he had possessed a firearm. Defendant also asserts that he should be resentenced because the District Court misunderstood its authority to depart downwardly. We hold that a district court does not err when it refuses to bifurcate a defendant’s jury trial to provide for separate consideration of the elements of a felon-in-possession charge. We also reject defendant’s challenge to his sentence. I. Background The Government charged defendant in a one-count indictment, alleging that he had unlawfully possessed a firearm on September 13, 2000, after having been previously convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The Government also alleged that he had been convicted of three prior violent felonies, thereby rendering him subject to a mandatory prison term of not less than 15 years under the ACCA, 18 U.S.C. § 924(e). Defendant did not contest that he had been convicted of a prior felony for the purposes of 18 U.S.C. § 922(g)(1) and, before trial, the parties agreed to a stipulation as follows: Charles Belk, the defendant, was, prior to September 13, 2000, convicted in New York State Supreme Court, upon his plea of guilty, of a crime punishable by imprisonment for a term exceeding one year. Thus, the only disputed issue for the jury to determine at trial was whether defendant had in fact been in possession of a weapon that had traveled in interstate commerce. In a pretrial motion in limine, defendant moved “to bifurcate the trial on the issues of possession of the firearm and his prior criminal record.” United States v. Belk, No. 01 Cr. 180(LTS), 2002 WL 237837, at *1 (S.D.N.Y. Feb. 19, 2002). Defendant argued that “bifurcation is necessary to prevent prejudice that would result from the jury being presented with evidence of prior convictions when it considers the issue of possession of a firearm.” Id. Under defendant’s proposal, the jury would not be told about the prior conviction at the start of trial, but would instead be told as follows: “[This] case does not involve ‘simple possession of a weapon,’ but rather there is an"
},
{
"docid": "16279761",
"title": "",
"text": "rejected the defendant’s bifurcation proposal in Belk, relying on our decision in Gilliam, which we described as holding that “a district court cannot, by approving a stipulation of the parties, remove from the jury’s consideration altogether the issue of defendant’s prior conviction in an 18 U.S.C. § 922(g)(1) case.” Id. We also described Gilliam as “expressly disavowing]” the approach taken in United States v. Orena, 811 F.Supp. 819 (E.D.N.Y.1992), in which the district court — as in the instant case — withheld from the jury, over the government’s objection, any evidence of the defendant’s prior conviction where the defendant was willing to stipulate to the fact of that conviction. See Belk, 346 F.3d at 310. In affirming the defendant’s conviction in Belk, we found it unnecessary to determine whether Gilliam would foreclose bifurcation in all conceivable circumstances, although we noted that “it would be an extraordinarily unusual case in which bifurcation of the elements of a charge under § 922(g)(1) could possibly be appropriate.” Id. at 311. By leaving open in Belk the possibility of bifurcation in some unforeseeable “extraordinarily unusual case,” we did not invite district courts in prosecutions under § 922(g)(1) to prevent juries from considering the prior-conviction element. Our refusal to announce a per se rule against bifurcation is fully consistent with our articulation, in this case, of a per se rule against removing from the jury’s consideration the fact of a prior conviction. In a bifurcated trial of a felon-in-possession charge — assuming that there may indeed be some circumstance in which bifurcation is appropriate — the jury would at least be informed that the charge involved something more than possession, and would, if possession was found, then consider the second element of a prior felony conviction. In contrast, under the stipulation adopted by the District Court in the instant case, the jury would consider possession, unaware of any other element of the offense, and would be stripped of its responsibility to consider both elements. We therefore conclude that, in a prosecution under § 922(g)(1), there are no circumstances in which a district court may remove"
},
{
"docid": "21558710",
"title": "",
"text": "BOWNES, Circuit Judge. The United States appeals the district court’s granting of Wayne N. Collamore’s motion to bifurcate his trial for being a felon in possession of a firearm in violation of 18 U.S.C.App. § 1202(a)(1). Fearing that we might not have appellate jurisdiction under 18 U.S.C. § 3731, the govern ment has also submitted a petition for mandamus under 28 U.S.C. § 1651(a). For. the reasons stated hereinafter we find the or-<jer to bifurcate improper. L BACKGROUND Collamore was indicted on a charge of being a felon in possession of a firearm. The indictment alleges eight felony convictions. Prior to trial, the government notified Collamore that it would seek an enhanced sentence under 18 U.S.C.App. § 1202(a), Armed Career Criminal Act (ACCA), because Collamore had been convicted three times of burglary and/or robbery. Collamore then moved to bifurcate the possession element of the crime from the element pertaining to his prior convictions. The government initially argued that it had the right to introduce evidence of all eight felony convictions alleged in the indictment. When it became clear that the court would not allow this, the government claimed it needed to introduce evidence as to at least three burglary or robbery convictions in order to prove its case for an enhanced sentence. Collamore would not stipulate to the convictions and the government did not offer to restrict its proof to one felony conviction. The district court ruled that allowing evidence of even three prior felonies “would inject an undue level of prejudice” into the trial. After the district court granted Collamore’s motion for bifurcation, the government offered to limit its trial proof to one felony conviction. The bifurcation order provided that the proceeding would be bifurcated and that the government would be required to produce first its evidence with respect to the circumstances alleged to constitute the possession of the weapon in question, and that then all of that evidence on both sides being produced as to those circumstances, the matter would be submitted to the jury for determination of a question on special verdict as to whether the jury"
},
{
"docid": "744884",
"title": "",
"text": "York state court, his potential sentence could not have exceeded 7 years (84 months). Johnson, relying on 18 U.S.C. § 3553(a)(6), now contends that the District Court should have considered the disparities between the federal and state penalties for his offense of conviction when determining the appropriate sentence. We disagree. Section 3553(a)(6) provides that, when sentencing a federal defendant, a court “shall consider ... the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” We have, however, previously noted that “the primary purpose of [§ 3553(a)(6)] was to reduce unwarranted sentence disparities nationwide.” United States v. Wills, 476 F.3d 103, 109 (2d Cir.2007). We have also observed that requiring district courts to reduce a defendant’s sentence whenever he “might have been subjected to different penalties had he been prosecuted in state court would make federal sentences dependent on the law of the state in which the sentencing court was located, resulting in federal sentencing that would vary from state to state.” United States v. Haynes, 985 F.2d 65, 70 (2d Cir.1993). In light of these observations, we cannot say that the District Court erred by declining to adopt an approach that would have decreased sentencing disparities between Johnson and any similarly-situated state defendant but increased sentencing disparities between Johnson and any similarly-situated federal defendant prosecuted in different states. We join the Fourth, Seventh and Tenth Circuits in reaching this conclusion. See United States v. Clark, 434 F.3d 684, 687-88 (4th Cir.2006); United States v. Wurzinger, 467 F.3d 649, 653-54 (7th Cir.2006); United States v. Branson, 463 F.3d 1110, 1112-13 (10th Cir.2006). We now turn to Johnson’s remaining claims. Johnson’s first claim — that the District Court erred by declining to bifurcate his trial — is without merit. See United States v. Amante, 418 F.3d 220, 224 (2d Cir.2005) (“Where the government agrees to stipulate [to] the fact of the prior felony without going into the underlying facts, there can be no unfair prejudice justifying bifurcation.”); United States v. Belk, 346 F.3d 305, 310 (2d Cir.2003) (observing that a district court’s"
},
{
"docid": "3349725",
"title": "",
"text": "few days later Moore and Jewell returned to the pawnshop and received the gun and ammunition. Second, Moore was the driver of the getaway car, which Moore and Pennington had stolen earlier the same day. Two eyewitnesses identified Moore as the driver. Telephone records showed that Moore called Pennington several times on the morning of the robbery. The district court severed the drug possession charge from the other charges, and each group of charges was tried separately to a different jury before the same judge. The district court refused to bifurcate the felon-in-possession charge into its component elements of gun possession and felony conviction, and both elements were tried and submitted to the jury together. Pennington, who pleaded guilty, testified at Moore’s bank robbery trial, admitting that he had robbed the bank and killed the bank employee. He stated that he and Moore had planned the robbery together and shared the proceeds and that Moore had driven the getaway car. II A. Prior to trial, Moore moved to bifurcate the felon-in-possession charge because of the alleged prejudicial effect the introduction of evidence relating to his prior conviction could and would have on the jury. He proposed that the jury should determine only whether he possessed a handgun, and that only if the jury found that he had would his felony conviction be introduced. The district court ultimately denied that motion, reasoning that since his criminal history was relevant to the other charges, his prior conviction would inevitably be disclosed to the jury; therefore, reference to it in connection with the gun possession charge would not prejudice Moore. Moore then stipulated to his prior conviction. The determination whether to bifurcate a particular count lies within the discretion of the district court, and we review a refusal to bifurcate for abuse of discretion. Several other circuits have held that a district court’s decision against bifurcating a felon-in-possession count is reviewed for abuse of discretion. See, e.g., United States v. Belk, 346 F.3d 305, 310 (2d Cir.2003) (“[A] district court’s exercise of its discretion in refusing to bifurcate the elements of a [felon-in-possession]"
},
{
"docid": "16279763",
"title": "",
"text": "the element of a prior felony conviction entirely from the jury’s consideration by accepting a defendant’s stipulation to that element. Finally, defendant’s counsel urges for the first time at oral argument that this Court should, as an alternative to affirming, remand the case to the District Court with instructions to hold a bifurcated trial Defendant’s argument seems to be that bifurcation is appropriate here because, if he were tried on the issue of possession, the credibility of his trial testimony would be the central issue, and the jury would give undue weight to his prior felony conviction in assessing his credibility. We decline to order bifurcation simply because the defendant’s credibility would be an issue at trial. This is not the “extraordinarily unusual case” in which, under Belk, bifurcation “could possibly be appropriate.” 346 F.3d at 311. The order of the District Court is hereby Vacated and the cause is Remanded for further proceedings consistent with this opinion. . 18 U.S.C. § 922(g)(1) makes it a crime for \"any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm or ammunition.” The two elements of the offense are thus (1) possession of a firearm in or affecting commerce (2) by a felon. . 18 U.S.C. § 3731 provides for an immediate appeal by the United States \"from a decision or order of a district court suppressing or excluding evidence” in a criminal case. . As we stated in Gilliam, the fact that there was a prior conviction is a \"crucial element” under § 922(g)(1), but because the underlying facts of the conviction are prejudicial and irrelevant, they should not be conveyed to the jury where the defendant stipulates to the fact of conviction. 994 F.2d at 103. We have also recognized the propriety of \"a curative instruction explaining to the jury that it may only use proof of the prior conviction to satisfy the prior-conviction element of the crime.” Belk, 346 F.3dat311. . The District Court stated during the October"
},
{
"docid": "3349727",
"title": "",
"text": "charge is not reversible error.”), cert. denied, - U.S. -, 124 S.Ct. 1474, 158 L.Ed.2d 126 (2004); United States v. Mangum, 100 F.3d 164, 171 (D.C.Cir.1996) (“[W]e find that the district court did not ... abuse its discretion by deciding not. to bifurcate the ex-felon element and the other elements of [the felon-in-possession count].”). In an unpublished decision, United States v. Underwood, Nos. 95-5441/95-5442, 1996 WL 536796, 1996 - U.S.App. LEXIS 24995 (6th Cir. Sept. 20, 1996), this court, in upholding a district court’s refusal to bifurcate the possession and felony elements of felon-in-possession counts, “adopted [the] rule” of the Ninth Circuit in United States v. Barker, 1 F.3d 957 (9th Cir.1993), amended by 20 F.3d 365 (1994). There, in reversing a district court’s bifurcation of the two'elements of a felon-in-possession count, the Ninth Circuit “h[e]ld that the district court may not bifurcate the single offense of being a felon in possession of a firearm into multiple proceedings.” Id. at 959. Although Barker appears to announce the rule that a felon-in-possession count “may not” be bifurcated at all, other decisions of the Ninth Circuit limit that principle to cases involving only a single felon-in-possession charge. See United States v. Nguyen, 88 F.3d-812, 817-18 (9th Cir.1996). We need not reach that issue to decide this case, however, since we conclude that here the district court did not abuse its discretion in refusing to bifurcate. As the district court pointed out, the jury was going to learn about Moore’s felony conviction apart from the felon-in-possession charge. Investigators originally linked Moore to the bank robbery through Jewell. Jewell had purchased the handgun used in the bank robbery for Moore because Moore was precluded from doing so as a convicted felon. In developing these facts, the prosecution necessarily and inevitably would refer to Moore’s felony conviction. Because that conviction was independently relevant to the proof of the bank robbery charges, the district court did not abuse its discretion in refusing to bifurcate the felon-in-possession count. See Fed. R.Evid. 404(b) (“Evidence of other crimes ... may ... be admissible ... as proof of ... intent,"
},
{
"docid": "21558715",
"title": "",
"text": "(b) clear entitlement to the relief requested.’ In re Recticel Foam Corp., 859 F.2d 1000, 1005 (1st Cir.1988) (footnote omitted).” In re Bushkin Assocs., Inc., 864 F.2d 241, 243 (1st Cir.1989) (further citations omitted). Both prerequisites for mandamus have been met here. The government’s right to appeal is limited to 18 U.S.C. § 3731. See Kane, 646 F.2d at 5. And, because of the double jeopardy constitutional proscription, § 3731 explicitly denies the government an appeal from orders excluding evidence “after the defendant has been put in jeopardy.” Thus, once trial has begun, the government will be irreparably harmed by not having any other avenue to seek redress for the district court’s bifurcation of the trial. We also find, as we explain in part III. A., that the government has a “clear entitlement to the relief requested.” III. THE MERITS We start our analysis by noting that we have now decided a question that at the time of the bifurcation order had not been addressed by this circuit: whether the three felony conviction provision of the statute was an element of a heightened crime or only for sentence enhancement. In United States v. Rumney, 867 F.2d 714, 717-19 (1st Cir.1989), we held that it was for sentence enhancement purposes only. A. Because the court was concerned that the jury would be prejudiced on the “very close factual question” of possession by the introduction of Collamore’s. prior convictions, it bifurcated the possession issue from the felony conviction issue. “A conviction under § 1202(a)(1) requires proof of three elements: (1) the accused is a convicted felon; (2) who knowingly possessed a firearm; (3) which was connected with interstate commerce.” Rumney, 867 F.2d at 721. By prohibiting the government from presenting evidence of even one prior felony conviction until the issue of possession had been decided, the court eliminated an essential element of the government’s case. As far as we can determine, absent an agreement by the parties, bifurcation is available in only two circumstances in criminal proceedings. A court may bifurcate a trial with respect to the issue of insanity, and a"
},
{
"docid": "16279760",
"title": "",
"text": "authority.”). In the instant case, the District Court interpreted Gilliam as leaving to a trial judge’s discretion the decision of whether to accept a defendant’s stipulation to the prior-conviction element of § 922(g)(1). Yet such an interpretation was foreclosed by our reasoning in Gilliam, as was recognized in our recent decision in Belk, which held that a district court does not err in refusing to “bifurcate” a jury trial to provide for separate consideration of the elements of a § 922(g)(1) charge. Under the defendant’s proposal in Belk, the jury would not be told about the fact of the prior conviction at the start of trial, but would instead be informed that “there is an additional critical element that will be submitted ... for [your] consideration after [you] deeide[ ] the issue of possession.” 346 F.3d at 308. If the jury determined that the Government had proven the possession element, the district court would then inform the jury that it must also find that the defendant had been convicted of a prior felony. Id. We rejected the defendant’s bifurcation proposal in Belk, relying on our decision in Gilliam, which we described as holding that “a district court cannot, by approving a stipulation of the parties, remove from the jury’s consideration altogether the issue of defendant’s prior conviction in an 18 U.S.C. § 922(g)(1) case.” Id. We also described Gilliam as “expressly disavowing]” the approach taken in United States v. Orena, 811 F.Supp. 819 (E.D.N.Y.1992), in which the district court — as in the instant case — withheld from the jury, over the government’s objection, any evidence of the defendant’s prior conviction where the defendant was willing to stipulate to the fact of that conviction. See Belk, 346 F.3d at 310. In affirming the defendant’s conviction in Belk, we found it unnecessary to determine whether Gilliam would foreclose bifurcation in all conceivable circumstances, although we noted that “it would be an extraordinarily unusual case in which bifurcation of the elements of a charge under § 922(g)(1) could possibly be appropriate.” Id. at 311. By leaving open in Belk the possibility of"
},
{
"docid": "23208403",
"title": "",
"text": "(citations omitted). Jones contends that the “drastically differing results” at his first and second trials eliminate the need to speculate about the unfair prejudice stemming from proof of Jones’s criminal past. Because of the inevitable spillover effect occasioned by proof of Jones’s tawdry record, he argues that the district court should have severed or, at least, bifurcated the felon in possession count. We agree. Courts have held that joinder of an ex-felon count with, other charges requires either severance, bifurcation, or some other effective ameliorative procedure. See, e.g., United States v. Joshua, 976 F.2d 844 (3d Cir.1992) (bifurcated trial is appropriate when government joins felon in possession count with other charges and proof of felony would not be admissible at trial on other counts); United States v. Dockery, 955 F.2d 50 (D.C.Cir.1992) (district court abused its discretion in failing to grant bifurcated trial or to fashion other procedures sufficient to curb prejudice from inclusion of ex-felon count); United States v. Desantis, 802 F.Supp. 794, 803 (E.D.N.Y.1992) (court ordered severance of ex-felon count because of manifest danger of prejudice). Citing United States v. Gilliam, 994 F.2d 97 (2d Cir.), cert. denied, — U.S. -, 114 S.Ct. 335, 126 L.Ed.2d 280 (1993), the government argues that Jones was not prejudiced by the district court’s refusal to sever or bifurcate the felon in possession count. Its reliance is misplaced. Gilliam is not dispositive here, as the § 922(g)(1) count in that case was the sole charge against the defendant, see id. at 98; prejudice as to other counts of the indictment was not — and could not have been — an issue. The government’s indictment tactics belie its present claim that the felon in possession count was not unfairly prejudicial. It added the felon in possession charge only after the first trial on the bank robbery charges ended with a hung jury, split ten to two for acquittal. No new facts supported the belated addition of the charge, and even if the government got a conviction on the new charge, it could not secure a longer sentence because of the grouping rules under"
},
{
"docid": "11524218",
"title": "",
"text": "tried together. II Nguyen argues that the district court erred when it did not allow his prior felony to be bifurcated from the issue of whether he possessed the Bryco handgun. We review for abuse of discretion the district court's refusal to bifurcate the possession of the gun element from the prior conviction element. United States v. Breitkreutz, 8 F.3d 688, 690 (9th Cir.1993). We have held that a district court cannot bifurcate a trial to separately consider whether a defendant was a felon and whether he possessed a gun because, \"proof of the felony conviction is essential to the proof of the offense.\" Id. at 691 (quoting United States v. Barker, 1 F.3d 957, 959 (9th Cir.1993)). Although Nguyen is in agreement with the general rule, he argues that his case is the exception for two reasons. First, Nguyen argues that the introduction of the prior conviction prejudiced the conspiracy case. Second, Nguyen argues that it is a violation of the equal protection clause to forbid a criminal defendant, and not a civil litigant, from precluding the admission of evidence of prejudicial facts. Nguyen has presented no evidence that the introduction of the prior conviction prejudiced the conspiracy case. Furthermore, as previously discussed, the jury was given a limiting instruction on the prior conviction on two separate occasions. Nguyen has failed to show that he is a member of a suspect class or that there has been a violation of a fundamental right. Plyler v. Doe, 457 U.S. 202, 217, 102 S.Ct. 2382, 2395, 72 L.Ed.2d 786 (1982). There, the rule prohibiting bifurcation of the possession of a gun element from the felon status element will be upheld upon a showing of \"some fair relationship to a legitimate public purpose.\" Id. at 216, 102 S.Ct. at 2394. There are various legitimate reasons for not allowing bifurcation of the offense of being in possession of a firearm into separate proceedings. First of all, the \"government would be precluded from proving an essential element of the charged offense, and the district court would breach its duty to instruct the jury on"
}
] |
111970 | asserting the same claim. a. Untimely Requests CIT’s amended administrative expense requests are untimely. CIT filed the amended requests after the applicable bar date, and they do not relate back to CIT’s original requests. Section 503(a) of the Code provides that “[a]n entity may timely file a request for payment of an administrative expense, or may tardily file such request if permitted by the court for cause.” 11 U.S.C. § 503(a). This section implicitly confers on bankruptcy courts the power to set deadlines for the filing of administrative expense requests. In re DP Partners L.P., 106 F.3d 667, 672 (5th Cir.1997); In re Cypresswood Land Partners I, 410 B.R. 247, 257 (Bankr.S.D.Tex.2009); In re Atcall, Inc., 284 B.R. 791, 798 (Bankr.E.D.Va.2002); REDACTED 4 Collier on Bankruptcy ¶ 503.02[2] at 503-10 (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2010); cf. In re PT-1 Commc’ns, Inc., 403 B.R. 250, 259 (Bankr.E.D.N.Y.2009) (stating that the power comes from section 105). Whether for proofs of claim or requests for administrative expenses, bar dates serve the salutary purpose of finality. PT-1 Commc’ns, 403 B.R. at 259 (noting that claims and administrative expense bar dates promote “finality and [in a chapter 11 case] debtor rehabilitation”) (internal quotation omitted). Once the claims and requests are Sled, parties can “concentrate on determining their validity and providing for payment.” Holstein v. Brill, 987 F.2d 1268, 1270 (7th Cir.1993). Allowing administrative expense requests to be filed at any time defeats | [
{
"docid": "14614396",
"title": "",
"text": "F.2d 1 (1st Cir.1992); In re Sunarhauserman, Inc., 184 B.R. 279, 282 (Bankr.N.D.Ohio 1995). The claimant to an administrative expense priority bears the burden of proving his entitlement to such treatment by a preponderance of the evidence. See Woburn Assocs. 954 F.2d at 5; see also United Trucking Serv., Inc. v. Trailer Rental Co., Inc. (In re United Trucking Serv., Inc.), 851 F.2d 159, 162 (6th Cir.1988). If allowed as an administrative expense, a claim is entitled to first priority of distribution among unsecured claims against the bankruptcy estate. See 11 U.S.C. § 507(a)(1). A. The Debtor’s confirmed plan set a deadline for filing requests for payment of administrative expenses sixty days after the entry of the order confirming the plan. (See Document No. 408). That order was entered on September 21, 1998; thus, the deadline for filing requests for payment of administrative expenses was November 20, 1998. Although the Trustee initially filed his Request for Payment of Administrative Claim on November 19, 1998, it was not until he filed his Second Amended Request for Payment of Administrative Claim on February 19, 1999, that the Trustee made any claim for compensation of his own time and reimbursement of his expenses. The original request related only to attorney fees and expenses and expert witness fees and expenses incurred by the Trustee. The Debtor objects that the request for reimbursement of the Trustee fees and expenses is too late. Pursuant to 11 U.S.C. § 503(a), “[a]n entity may timely file a request for payment of an administrative expense, or may tardily file such request if permitted by the court for cause.” The Bankruptcy Code specifies no time for the filing of requests for reimbursement of administrative expenses, thus it is left to the discretion of the bankruptcy judge to set a dead line for filing such requests. In this case, the deadline was set in the order confirming the Debtor’s plan. The Code does not specify what “cause” could be shown that would permit a tardily filed request for payment of an administrative expense. Federal Rule of Bankruptcy Procedure 9006(b) permits the"
}
] | [
{
"docid": "2578136",
"title": "",
"text": "See In re Atcall Inc., 284 B.R. 791, 798 (Bankr.E.D.Va.2002) (“Proofs of claims- are governed by express bar dates and the procedures for proofs of claims and requests for payment should be as similar as possible.”). However, post-bar date amendments must be carefully scrutinized to ensure that a new claim is not being filed “under the guise of an amendment.” Hudson Oil, 91 B.R. at 947. On October 24, 2002, an administrative bar date order was entered. See Docket #411. The order approved a notice to creditors, which stated, in part: “The Court has fixed December 23, 2002 at 5:00 p.m. as the last date and time by which proofs of Administrative Expenses must be filed.” The notice further stated: “Each holder of a claim who is required, but fails to file a proof of administrative expense by the administrative bar date, shall be forever barred from assertion of its administrative expense against the debtors and their property.” A certificate of service was filed with the Court stating that the administrative bar date notice was mailed to creditors, including the IRS, on October 29, 2002. See Docket # 471. The IRS’s current administrative expense request includes a request for payment of a penalty for PT-l’s failure to pay estimated taxes, which was not asserted in any of the IRS’s administrative expense requests previously filed in this case. The Trustee’s counsel stated that no advance notice was given that the IRS sought, or was planning to seek this estimated tax penalty claim for 2001. See Trustee’s Reply Mem. in Sup. of Mot. for Summ. J. at 7. The IRS admitted that the estimated tax penalty and the failure to timely pay taxes penalty are different claims. The IRS’s counsel stated: I don’t have the breakdown in front of me as to what portion of that penalty claim [listed on the request for administrative expense payment] related to failure to pay, and what part of that penalty claim related to failure to pay estimated taxes. Those two penalties are assessed under different sections.... Tr. at 49. This estimated tax penalty request is"
},
{
"docid": "2578125",
"title": "",
"text": "In re Jarrell, 251 B.R. 448, 450-451 (Bankr.S.D.N.Y.2000). Discussion I. Objection to Claim A. Burden of Proof The Trustee argues that the IRS bears the burden to prove its entitlement to the administrative expense claims. The IRS argues that its request for administrative payment is prima facie evidence of the validity of the request’s amount and therefore, the Trustee bears the burden of proof. Section 503(b) of the Bankruptcy Code provides that “after notice and a hearing” taxes incurred by the estate are “allowed” as administrative expenses. 11 U.S.C. § 503(b). Since “grants of administrative expense priority cut against the general goal in bankruptcy law to distribute limited debtor assets equally among similarly situated creditors,” it has been held that “the party seeking administrative expense status bears the burden of establishing its entitlement to that status.” In re Adelphia Bus. Solutions, Inc., 296 B.R. 656, 662 (Bankr.S.D.N.Y.2003). Although bank ruptcy Rule 3001(f) provides that a filed proof of claim constitutes prima facie evidence of the validity and amount of the claim, courts have held that requests for administrative expense payment are not given the same evidentiary weight as proofs of claim. Fed. R. Bankr.P. 3001(f); See, e.g., In re Silvus, 329 B.R. 193, 205 (Bankr.E.D.Va.2005); In re Morgan, 48 B.R. 148, 149 (Bankr.D.Md.1985); See also 4 Collier on Bankruptcy ¶ 503.02[2] (Alan N. Resnick & Henry J. Sommer eds. 15th ed. rev.) (“The ‘notice and hearing’ requirement for allowance of administrative expenses is in contrast to the ‘deemed’ allowance provision of section 502(a) respecting proofs of claim. The phrase ‘after notice and a hearing’... contemplates at least some form of court approval before allowance of any administrative payment from the estate....”). Here, the burden of proof is not an issue because the material facts underlying the issues are undisputed and only questions of law remain. B. Penalties for Failing to Timely File and Timely Pay The Trustee argues that the penalties and interest relating to PT-l’s failure to timely file a tax return and to timely pay taxes should be expunged because the failure was due to reasonable cause and"
},
{
"docid": "18536201",
"title": "",
"text": "claim. 11 U.S.C. § 501; see NL Industries, Inc. v. GHR Energy Corp., 940 F.2d 957, 966 (5th Cir.1991) (noting that administrative expense claimants are to file requests for payment rather than proofs of claim), cert. denied, 502 U.S. 1032, 112 S.Ct. 873, 116 L.Ed.2d 778 (1992); In re Packard Properties, Ltd., 118 B.R. 61, 63 (Bankr.N.D.Tex.1990) (McGuire, C.J.) (same). Section 502 governs allowance of claims. Although the Federal Rules of Bankruptcy Procedure (“Rules”) provide specific procedures and deadlines for the filing of proofs of claims, neither the Rules nor the Code provide specific procedures for how or when a § 503 request for payment should be made. In re Transouth Truck Equipment, Inc., 87 B.R. 937, 938 (Bankr.E.D.Tenn.1988); see United States v. Brandt (In re Lissner), 119 B.R. 143, 144-45 (N.D.Ill.1990); Fed.R.Bankr.P. 3002-3005 (specifying procedures for filing proofs of claim). Because administrative expense claimants — who it might be more appropriate to refer to as “request-ors” — do not file proofs of claim, the deadlines set for filing a proof of claim do not apply to them. See William L. Norton, Jr., Norton Bankruptcy Law and Practice 2d § 42:14, at 42-73 to 42-74 (1994) (noting that courts have found that the proof of claim provisions of the Code and Rules do not apply to administrative expenses and concluding that administrative expense claimants are apparently not subject to the bar dates for filing claims in Rule 3002). The Official Proof of Claim Form for the United States Bankruptcy Courts also supports this result in that it provides: NOTE: This form should not be used to make a claim for an administrative expense arising after the commencement of the case. A “request” for payment of an administrative expense may be filed pursuant to 11 U.S.C. § 503. Official Bankr.Form 10; 11 U.S.C. A number of courts have found that the conversion of a case from one pending under Chapter 11 to one pending under Chapter 7 changes the requirements for preconversion administrative expense claimants, such that they are to file proofs of claim by the deadline, or bar date, noticed"
},
{
"docid": "8274846",
"title": "",
"text": "with more frequency, the court does not find the requests to be untimely under the circumstances. That is not to say, of course, that requests for an award of compensation will be timely in all cases. Instead, the court will make such determinations on a case by case basis taking into account all relevant factors. The court reiterates that to the extent a firm deadline is even necessary, it should be established through the local rules process with input from the other judges of this court, the Chapter 13 trustees, the debtors’ bar, and other parties in interest. In sum, the court finds the Applicant’s requests for awards of compensation to have been timely in both cases. B. Allowance of an Administrative Expense - 11 U.S.C. § 503 Having determined that the Applicant is entitled to an award of compensation under section 330(a) in both cases, the court next considers whether the Applicant’s requests for administrative expenses were timely. As discussed in Hirsch, no section of the Bankruptcy Code or any applicable rule explicitly establishes a deadline for the filing of requests for administrative expenses. See In re Hirsch, Case No. 12-03851, 550 B.R. 126, 2016 WL 2898061 (Bankr.W.D.Mich. May 13, 2016) (citations omitted). Although section 503(a) refers to timely requests for administrative expenses, it does not actually impose a firm time period within which such a request must be filed. Id. (citations omitted); see 11 U.S.C. § 503(a). Instead, absent any explicit or implicit directive in the Bankruptcy Code or an applicable rule, bankruptcy courts have the inherent authority under section 503(a) and section 105(a) to establish the time by which a request for an administrative expense must be made. See, e.g., Hall Fin. Group, Inc. v. DP Partners, Ltd. P’ship (In re DP Partners Ltd. P’Ship), 106 F.3d 667, 671-72 (5th Cir.1997) (bankruptcy courts have discretion to establish deadlines for filing requests for administrative expenses); In re Chicago Pacific Corp., 773 F.2d 909, 917 (7th Cir.1985) (request for administrative expense must be made within reasonable time). Nonetheless, even where the Bankruptcy Code or an applicable rule provides an"
},
{
"docid": "3433037",
"title": "",
"text": "its continued representation of Morrow, in his individual capacity, and that the firm was accepting payments from Morrow and crediting those payments to Morrow’s personal account while simultaneously representing the Debtor. [Finding of Fact No. 15.] BMP’s failure to disclose these facts prevented the Court from assessing BMP’s disinterestedness and therefore violated Bankruptcy Rule 2014 and 11 U.S.C. § 327(a). In re Balco Equities Ltd., 345 B.R. 87, 112 (Bankr.S.D.N.Y. 2006) (holding that a failure to disclose direct or indirect relations to, connections with, or interest in the debtor violates the Bankruptcy Code). 3. The BMP Final Application was untimely filed without cause. There is a third and independent basis for Complete Disapproval and Disgorgement. This Court orders Complete Disapproval and Disgorgement because the BMP Final Application was untimely filed without cause. Section 503(a) of the Bankruptcy Code states that “an entity may timely file a request for payment of an administrative expense, or may tardily file such request if permitted by the court for cause.” 11 U.S.C. § 503(a). This section is intentionally broad and leaves the setting of filing deadlines to the Bankruptcy Rules, which in turn defers to bankruptcy courts the task of setting a deadline for the filing of administrative claims. Hall Fin. Group v. DP Partners, Ltd. P’ship (In re DP Partners, Ltd. P’ship), 106 F.3d 667, 672 (5th Cir.1997). In this case, the Amended Disclosure Statement, signed by Moore for BMP, set forth that the deadline for all professionals employed pursuant to 11 U.S.C. §§ 327 and 330 to file administrative claims was sixty (60) days after the Effective Date, making the deadline in this case April 6, 2009. [Finding of Fact No. 8.] However, BMP filed the BMP Final Application on April 22, 2009 — almost three weeks after the deadline. [Finding of Fact No. 12.] The Amended Plan states that failure to timely file an application for an administrative claim will result in the claim being forever barred and discharged. [Docket No. 165.] At the Application and Objection Hearings, BMP — through Moore, as its representative — admitted the BMP Final Application"
},
{
"docid": "2578133",
"title": "",
"text": "2001 WL 91624, at * 7 (Bankr.E.D.Pa.2001). There is no reasonable cause exception to the imposition of this penalty. See 26 U.S.C. § 6655. The Trustee cites Meyer v. Commissioner, 85 T.C.M. (CCH) 760, 2003 WL 118258 (2003), in support of his argument that penalties should not be imposed on a taxpayer for failing to pay estimated taxes if the taxpayer is incapacitated. The Trustee’s reliance on Meyer is misplaced. The Meyer court was deciding, in part, whether a penalty imposed on an individual taxpayer for failure to pay estimated taxes was appropriate under Internal Revenue Code § 6654. Meyer, 85 T.C.M. (CCH) 760, 2003 WL 118258, at *4. Here, the IRS’s penalty request for PT-l’s failure to pay estimated taxes rests on Internal Revenue Code § 6655. The two sections differ significantly, though both relate to failure to pay estimated taxes. Section 6654 relates to individual taxpayers and provides that a penalty should not be imposed when the penalty would be against equity and good conscience or when the individual taxpayer was disabled. 26 U.S.C. § 6654. Section 6655 relates to corporate taxpayers and does not include any exception to the imposition of the penalty. 26 U.S.C. § 6655. Nevertheless, the Trustee’s motion to expunge the IRS’s request for a penalty based on PT-l’s failure to pay estimated taxes is granted because the IRS’s request is untimely. Bankruptcy Rule 3003(c)(3) provides that a court “shall fix” a bar date by which proofs of claim in a Chapter 11 case shall be filed. Fed. R. Bankr.P. 3003(c)(3). Although there is no provision relating to a bar date for requesting an administrative expense payment, courts may set such a date pursuant to Bankruptcy Code § 105. See In re Reams Broadcasting Corp., 153 B.R. 520, 522 (Bankr.N.D.Ohio 1993). An administrative bar date serves the same purpose as a claims bar date, which is “finality and debtor rehabilitation.” 9 Collier on Bankruptcy ¶ 3003.03[4] (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev.). Allowing requests for administrative expense payment to be filed at any time would have the same effect"
},
{
"docid": "3086965",
"title": "",
"text": "costs. Otherwise, the necessary power of the court to ensure that assets of the estate are not wasted would be undermined.” Id. (internal quotation omitted). Thus, when in doubt, a prudent professional should seek to be retained under § 327 in order to be paid for the services rendered. “The Seventh Circuit, however, has held that the equitable aspects of bankruptcy proceedings permit the court to retroactively approve the employment of [professionals] under the proper circumstances.” Banhalmi, 84 B.R. at 127 (citing Stolkin v. Nachman, 472 F.2d 222 (7th Cir.1973)). Retroactive approval of employment is limited to cases in which prior approval would have been appropriate and extraordinary circumstances are present. Id.; F/S Airlease II, Inc. v. Simon (In re F/S Airlease II, Inc.), 844 F.2d 99, 105 (3d Cir.1988); Gowan v. Lefkas Gen. Partners No. 1017 (In re Lefkas Gen. Partners No. 1017), 153 B.R. 804, 808 (N.D.Ill.1993). A finding of extraordinary circumstances requires consideration of equitable factors, including: whether the applicant or some other person bore responsibility for applying for approval; whether the applicant was under time pressure to begin service without approval; the amount of delay after the applicant learned that initial approval had not been granted; the extent to which compensation to the applicant will prejudice innocent third parties; and other relevant factors. Lefkas, 153 B.R. at 808 n. 2 (quoting In re Arkansas Co., 798 F.2d 645, 650 (3d Cir.1986)). In those circumstances, approval may be granted in the discretion of the bankruptcy court. Id. Mere oversight or inadvertence of counsel, however, does not constitute excusable neglect sufficient to relieve the parties of the consequences of their actions. Arkansas, 798 F.2d at 649-50. C. 11 U.S.C. § 503(a) and (b) Section 503(a) of the Code permits an entity to “file a request for payment of an administrative expense. ...” 11 U.S.C. § 503(a). Pursuant to § 503(b)(l)(A)(i), post-petition costs and expenses of preserving the estate are allowed as administrative expenses. Section 503(b)(1)(A)® provides as follows: (b) After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f) of"
},
{
"docid": "2578126",
"title": "",
"text": "requests for administrative expense payment are not given the same evidentiary weight as proofs of claim. Fed. R. Bankr.P. 3001(f); See, e.g., In re Silvus, 329 B.R. 193, 205 (Bankr.E.D.Va.2005); In re Morgan, 48 B.R. 148, 149 (Bankr.D.Md.1985); See also 4 Collier on Bankruptcy ¶ 503.02[2] (Alan N. Resnick & Henry J. Sommer eds. 15th ed. rev.) (“The ‘notice and hearing’ requirement for allowance of administrative expenses is in contrast to the ‘deemed’ allowance provision of section 502(a) respecting proofs of claim. The phrase ‘after notice and a hearing’... contemplates at least some form of court approval before allowance of any administrative payment from the estate....”). Here, the burden of proof is not an issue because the material facts underlying the issues are undisputed and only questions of law remain. B. Penalties for Failing to Timely File and Timely Pay The Trustee argues that the penalties and interest relating to PT-l’s failure to timely file a tax return and to timely pay taxes should be expunged because the failure was due to reasonable cause and not willful neglect. The IRS contends that PT-l’s objection to the late filing penalty is moot because its most current request for payment of administrative expenses does not include a late filing penalty. The IRS further contends that, even though the extension request rendered the late filing penalty improper, it does not excuse PT-l’s failure to timely pay its taxes. Pursuant to title 26 of the United States Code (the “Internal Revenue Code”), a corporation is required to timely pay its taxes. 26 U.S.C. § 11. An affiliated group of corporations, such as a parent corporation and its subsidiaries, “shall have the privilege of making a consolidated return ... in lieu of separate returns.” 26 U.S.C. § 1501. If the affiliated corporations choose to become a consolidated group, they “are treated as a single entity for income tax purposes as if they were, in fact, one corporation.” Official Comm. of Unsecured Creditors v. PSS Steamship Co. (In re Prudential Lines Inc.), 928 F.2d 565, 569 (2d Cir.1991) (quoting Exxon Corp. v. United States, 785 F.2d"
},
{
"docid": "3719141",
"title": "",
"text": "the requirements of § 1129(b) in order to be confirmed. The Court will address § 1129(b) in § IV.B. of this Opinion. 7. Section 1129(a)(9) In a Chapter 11 plan of reorganization, all administrative claims must be paid in full under a Chapter 11 plan of reorganization unless the claim holder agrees to different treatment. 11 U.S.C. § 1129(a)(9)(A); Sentinel, 398 B.R. at 316. Administrative expenses include “the actual, necessary costs and expenses of preserving the estate[J” 11 U.S.C. § 503(b)(1)(A). An entity with an administrative expense may file a request with the bankruptcy court under § 503(a) that the court then “allows” under § 503(b) after notice and a hearing. In re Telesphere Commc’ns, Inc., 148 B.R. 525, 530 n. 13 (Bankr.N.D.Ill.1992). When a party is induced to supply goods or services to the estate, § 503(b) requires that those expenses be afforded administrative priority. In re Jartran, Inc., 732 F.2d 584, 586 (7th Cir.1984). Dynegy argues that the Plan fails to provide for payment of all administrative expenses because the Debtor failed to make his October 2010 mortgage payment on the property located at 1202 Towpath Lane, Wilmington, Illinois (the “Towpath Property”). On this basis, Dynegy asserts that the Plan fails to meet § 1129(a)(9) because the holder of the mortgage, Bank of America has a right to receive an administrative expense distribution. On November 6, 2009, the Court entered an order requiring the Debtor to maintain regular monthly payments on the Towpath Property. (Dynegy Ex. No. 33.) The Debtor testified that as far as he knew, no one has been making payments on the Towpath Property and Bank of America was told “they can have the property.” (Trans. 139:11-15.) When asked whether he has retained possession of the Towpath Property, the Debtor responded “Sort of, kind of.” (Id. at 129:2-6.) The Debtor admitted that the Plan does not provide for the payment of administrative claims to Bank of America. (Id. at 130:5-13.) The Plan provides for all allowed administrative expenses to be paid in full on the effective date of the Plan (the “Effective Date”). (Debtor Ex."
},
{
"docid": "10171448",
"title": "",
"text": "a bankruptcy court could grant the a chapter 7 debtor a discharge on the sixty-first day following the first date set for the § 341(a) meeting, creditors would still have 29 additional days to file proofs of claim. Thus, the entry of a discharge order does not, by itself, act as a bar to all later filed proofs of claim. B. The same result follows in chapter 11. That is, if the chapter 11 bar date established by a court under Rule 3003(c) is after confirmation, the entry of the confirmation order — even though it has the effect of ordering a discharge — does not preclude a creditor from filing a timely proof of claim. In the instant dispute, UTCC’s prepetition claim was deemed allowed by virtue of the debtor’s schedules. Its posteonfirmation claim is not discharged, and that may be asserted in state court. Its postpetition/preconfirmation claim would have been an administrative claim, but UTCC never made a request for payment under section 503. The Bankruptcy Code, however, does not provide any deadline by which a claimant must file a request for payment of an administrative expense in the bankruptcy court. See L. King, 3 Collier on Bankruptcy, ¶ 503.01, at 503-3 to 503-4 (15th ed. 1993) (“The statute does not provide for a time when a request for administrative expenses should be made ... ”). Rather, section 503(a) merely provides that “[a]n entity may file a request for payment of an administrative expense.” 11 U.S.C. § 503(a) (emphasis added). An administrative claimant technically is not a “creditor” as defined by the bankruptcy code, and, therefore, is not required to file a proof of claim by virtue of Rules 3002 or 3003. 11 U.S.C. § 101(10) (defining “creditor” as, inter alia, an “entity that has a claim against the debtor that arose at the time of or before the order for relief”). See Matter of West Johnson Corp., 96 B.R. 182, 183 (Bankr.W.D.Wis. 1988) (administrative claimants, in an unconverted case, are not required to file proofs of claim). As explained by one court: The legislative history ... [accompanying"
},
{
"docid": "18001570",
"title": "",
"text": "or (e) of this section, the same as if such claim had arisen before the date of the filing of the petition. 11 U.S.C. § 502(g). Stated succinctly, § 502(g) mandates that a claim arising from rejection of an executory contract are treated as a pre-petition claim. Section 507 governs the priorities of expenses and claims and provides in pertinent part: (a) The following expenses and claims have priority in the following order: (1) First, administrative expenses allowed under section 503(b) of this title, and any fees and charges assessed against the estate under chapter 123 of title 28. 11 U.S.C. § 507(a)(1). Section 503 of the Bankruptcy Code, entitled “[ajllowance of administrative expenses”, provides in pertinent part: (a) An entity may file a request for payment of an administrative expense. (b) After a notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f) of this title, including— (1)(A) the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case ... 11 U.S.C. §§ 503(a) and (b)(1)(A). “The phrase ‘actual, necessary’ has been interpreted to mean those expenditures of the trustee for the cost of operating a business, ... for taxes and other costs incidental to the protection and conservation of the estate.” In re Gamma Fishing Co., Inc., 70 B.R. 949, 953, 16 C.B.C.2d 996, Bankr.L.Rep. (CCH) If 71711 (Bankr.S.D.Cal.1987) (citing In re Hilburn, 62 B.R. 597, 600 (Bankr.N.D.Miss.1986)). Only expenditures which clearly benefit the estate will be afforded administrative expense status. Trustees Amalgamated Insurance Fund v. McFarlin’s, 789 F.2d 98, 101, 14 C.B.C.2d 1075, Bankr.L.Rep. 1171096 (2d Cir.1986); In re Chateaugay Corporation, 102 B.R. 335, 353, 19 B.C.D. 1102, 21 Collier Bankr.Cas.2d 135 (Bankr.S.D.N.Y.1989) citing 3 L. King, C. Cyr, H. Minkel, R. Rogers, Henry Sommer, W. Tag-gart, A. Winkler Collier on Bankruptcy, If 503-03 (15th ed. 1989); Hassett v. Revlon, Inc. (In re O.P.M. Leasing Services, Inc.), 23 B.R. 104, 121 (Bankr.S.D.N.Y.1982). Strict construction of the terms “actual” and “necessary,” serves to keep “administrative expenses at a"
},
{
"docid": "10171449",
"title": "",
"text": "by which a claimant must file a request for payment of an administrative expense in the bankruptcy court. See L. King, 3 Collier on Bankruptcy, ¶ 503.01, at 503-3 to 503-4 (15th ed. 1993) (“The statute does not provide for a time when a request for administrative expenses should be made ... ”). Rather, section 503(a) merely provides that “[a]n entity may file a request for payment of an administrative expense.” 11 U.S.C. § 503(a) (emphasis added). An administrative claimant technically is not a “creditor” as defined by the bankruptcy code, and, therefore, is not required to file a proof of claim by virtue of Rules 3002 or 3003. 11 U.S.C. § 101(10) (defining “creditor” as, inter alia, an “entity that has a claim against the debtor that arose at the time of or before the order for relief”). See Matter of West Johnson Corp., 96 B.R. 182, 183 (Bankr.W.D.Wis. 1988) (administrative claimants, in an unconverted case, are not required to file proofs of claim). As explained by one court: The legislative history ... [accompanying § 503] stated that “[t]he Rules of Bankruptcy Procedure will specify the time, the form, and the method of such a filing.” H.Rep. No. 595, 95th Cong., 1st Sess. 355 (1977)_ Unfortunately, the rules do not give the guidance Congress had hoped they would. In fact, they give no guidance at all. Bankruptcy Rule 3003 is clearly drafted to implement Section 502, not Section 503. There is no implementing rule for the latter section, despite Congress’ suggestion. In re MacDonald, 128 B.R. 161, 165 n. 5 (Bankr.W.D.Tex.1991). Although a bankruptcy court has the general authority to impose an administra tive bar date, see In re Conroy, 144 B.R. 966, 972 (Bankr.W.D.Pa.1992); In re Holy-well Corp., 68 B.R. 134, 137 (Bankr. S.D.Fla.1986), the debtor here did not seek an order setting a deadline for filing administrative claims, and no such order was entered. Alternatively, a chapter 11 debtor may possibly seek to impose an administrative claims bar date by establishing an administrative claims filing deadline as a provision of a confirmed plan. E.g., In re Dahlgren"
},
{
"docid": "2578135",
"title": "",
"text": "as allowing proofs of claim to be filed at any time, making it “impossible to determine with any finality the obligations of the debtor.” Id. “Generally, courts will allow amendments to proofs of claims in order ‘to cure a defect in the claim as originally filed, to describe the claim with greater particularity, or to plead a new theory of recovery on the facts set forth on the original claim.’ ” Hudson Oil, 91 B.R. at 947 (quoting In re Int’l Horizons, Inc., 751 F.2d 1213, 1216 (11th Cir.1985)); See also In re G.L. Miller & Co., 45 F.2d 115, 116 (2d Cir.1930) (amendments are permitted to “correct defects of form, or to supply greater particularity in the allegations of fact from which the claim arises, or to make a formal proof of claim based upon facts, which, within the statutory period, had already been brought to the notice of the trustee by some informal writing or some pleading in the bankruptcy proceedings”). Similarly, a creditor may amend its request for an administrative expense payment. See In re Atcall Inc., 284 B.R. 791, 798 (Bankr.E.D.Va.2002) (“Proofs of claims- are governed by express bar dates and the procedures for proofs of claims and requests for payment should be as similar as possible.”). However, post-bar date amendments must be carefully scrutinized to ensure that a new claim is not being filed “under the guise of an amendment.” Hudson Oil, 91 B.R. at 947. On October 24, 2002, an administrative bar date order was entered. See Docket #411. The order approved a notice to creditors, which stated, in part: “The Court has fixed December 23, 2002 at 5:00 p.m. as the last date and time by which proofs of Administrative Expenses must be filed.” The notice further stated: “Each holder of a claim who is required, but fails to file a proof of administrative expense by the administrative bar date, shall be forever barred from assertion of its administrative expense against the debtors and their property.” A certificate of service was filed with the Court stating that the administrative bar date notice was"
},
{
"docid": "2578134",
"title": "",
"text": "U.S.C. § 6654. Section 6655 relates to corporate taxpayers and does not include any exception to the imposition of the penalty. 26 U.S.C. § 6655. Nevertheless, the Trustee’s motion to expunge the IRS’s request for a penalty based on PT-l’s failure to pay estimated taxes is granted because the IRS’s request is untimely. Bankruptcy Rule 3003(c)(3) provides that a court “shall fix” a bar date by which proofs of claim in a Chapter 11 case shall be filed. Fed. R. Bankr.P. 3003(c)(3). Although there is no provision relating to a bar date for requesting an administrative expense payment, courts may set such a date pursuant to Bankruptcy Code § 105. See In re Reams Broadcasting Corp., 153 B.R. 520, 522 (Bankr.N.D.Ohio 1993). An administrative bar date serves the same purpose as a claims bar date, which is “finality and debtor rehabilitation.” 9 Collier on Bankruptcy ¶ 3003.03[4] (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev.). Allowing requests for administrative expense payment to be filed at any time would have the same effect as allowing proofs of claim to be filed at any time, making it “impossible to determine with any finality the obligations of the debtor.” Id. “Generally, courts will allow amendments to proofs of claims in order ‘to cure a defect in the claim as originally filed, to describe the claim with greater particularity, or to plead a new theory of recovery on the facts set forth on the original claim.’ ” Hudson Oil, 91 B.R. at 947 (quoting In re Int’l Horizons, Inc., 751 F.2d 1213, 1216 (11th Cir.1985)); See also In re G.L. Miller & Co., 45 F.2d 115, 116 (2d Cir.1930) (amendments are permitted to “correct defects of form, or to supply greater particularity in the allegations of fact from which the claim arises, or to make a formal proof of claim based upon facts, which, within the statutory period, had already been brought to the notice of the trustee by some informal writing or some pleading in the bankruptcy proceedings”). Similarly, a creditor may amend its request for an administrative expense payment."
},
{
"docid": "12927848",
"title": "",
"text": "is time barred because it was filed after the bar date for filing requests for payment of administrative expenses, December 23, 2002 (the “Administrative Bar Date”), and does not amend a timely filed request for payment of that expense. This argument is based on the reasoning in this Court’s decision dated March 26, 2007 disallowing the IRS’s request for payment of penalties and interest for the failure to pay estimated taxes for the 2001 tax year on the basis that this request was untimely. In re PT-1 Commc’ns, Inc., 386 B.R. 402 (Bankr.E.D.N.Y.2007). The IRS argues that the untimely Short Period Request should be allowed on the basis of excusable neglect because the Administrative Bar Date was only three months after PT-1 submitted its tax return for the Short Period. Bankruptcy Rule 3003(c)(3) provides that a court “shall fix” a bar date by which proofs of claim in a Chapter 11 case shall be filed. Fed. R. Bankr.P. 3003(c)(3). Although there is no provision relating to a bar date for requesting an administrative expense payment, courts may set such a date pursuant to Bankruptcy Code § 105. See In re Reams Broad. Corp., 153 B.R. 520, 522 (Bankr.N.D.Ohio 1993). An administrative bar date serves the same purpose as a claims bar date, which is “finality and debtor rehabilitation,” 9 Collier on Bankruptcy ¶ 3003.03[4] (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev.), and “enables] the parties to a bankruptcy case to identify with reasonable promptness the identity of those making claims against the bankruptcy estate and the general amount of the claims, a necessary step in achieving the goal of successful reorganization,” First Fidelity Bank, N.A., N.J. v. Hooker Invs., Inc. (In re Hooker Invs., Inc.), 937 F.2d 833, 840 (2d Cir.1991). Allowing requests for administrative expense payment to be filed at any time would have the same effect as allowing proofs of claim to be filed at any time, undermining “the institutional means of ensuring the sound administration of the bankruptcy estate.” Hooker, 937 F.2d at 840. However, a Court may allow a late filed request"
},
{
"docid": "12927849",
"title": "",
"text": "courts may set such a date pursuant to Bankruptcy Code § 105. See In re Reams Broad. Corp., 153 B.R. 520, 522 (Bankr.N.D.Ohio 1993). An administrative bar date serves the same purpose as a claims bar date, which is “finality and debtor rehabilitation,” 9 Collier on Bankruptcy ¶ 3003.03[4] (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev.), and “enables] the parties to a bankruptcy case to identify with reasonable promptness the identity of those making claims against the bankruptcy estate and the general amount of the claims, a necessary step in achieving the goal of successful reorganization,” First Fidelity Bank, N.A., N.J. v. Hooker Invs., Inc. (In re Hooker Invs., Inc.), 937 F.2d 833, 840 (2d Cir.1991). Allowing requests for administrative expense payment to be filed at any time would have the same effect as allowing proofs of claim to be filed at any time, undermining “the institutional means of ensuring the sound administration of the bankruptcy estate.” Hooker, 937 F.2d at 840. However, a Court may allow a late filed request for administrative expense payment if the creditor establishes that the failure to timely file the request was due to excusable neglect. See Fed. R. Bankr.P. 9006(b)(1) (“[W]hen an act is required or allowed to be done at or within a specified period by ... order of the court,' the court for cause shown may at any time in its discretion ... permit the act to be done where the failure to act was the result of excusable neglect.”); Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 389, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); In re Dana Corp., Case No. 06- 10354(BRL), 2007 WL 1577763, at *3 (Bankr.S.D.N.Y. May 30, 2007) (“Only if the claimant can demonstrate excusable neglect may the court apply general principles of equity and permit a late-filed proof of claim, whether an administrative expense claim under section 503 or a general unsecured claim under Bankruptcy Rule 3003.”); In re Atcall Inc., 284 B.R. 791, 798 (Bankr.E.D.Va.2002) (“Proofs of claims are governed by express bar dates and the procedures for"
},
{
"docid": "18536200",
"title": "",
"text": "financing orders entered by the Court describe the amounts loaned by Morgan as administrative expenses and provide that such amounts have a “superpriority” under the provisions of § 364(e)(1). (See, e.g., September 28, 1992, Order at 4, 11.) Although the Code does not provide that amounts loaned pursuant to § 364(c)(1) are to be designated as “superpriority,” it would seem that the effect of the statutory language is to do so, as such expense is to be paid ahead of other administrative expenses. See 11 U.S.C. § 364(c)(1). In addition, although the Code does not characterize amounts loaned pursuant to § 364(c)(1) as an administrative expense, such amounts would be administrative expenses pursuant to 11 U.S.C. § 503(b). Section 503 of the Code is the statutory provision governing the allowance of administrative expense claims. Section 503 provides that an entity may file a request for payment of an administrative expense which the court shall allow after notice and hearing. 11 U.S.C. § 503. In contrast, the Code directs a creditor to file a proof of claim. 11 U.S.C. § 501; see NL Industries, Inc. v. GHR Energy Corp., 940 F.2d 957, 966 (5th Cir.1991) (noting that administrative expense claimants are to file requests for payment rather than proofs of claim), cert. denied, 502 U.S. 1032, 112 S.Ct. 873, 116 L.Ed.2d 778 (1992); In re Packard Properties, Ltd., 118 B.R. 61, 63 (Bankr.N.D.Tex.1990) (McGuire, C.J.) (same). Section 502 governs allowance of claims. Although the Federal Rules of Bankruptcy Procedure (“Rules”) provide specific procedures and deadlines for the filing of proofs of claims, neither the Rules nor the Code provide specific procedures for how or when a § 503 request for payment should be made. In re Transouth Truck Equipment, Inc., 87 B.R. 937, 938 (Bankr.E.D.Tenn.1988); see United States v. Brandt (In re Lissner), 119 B.R. 143, 144-45 (N.D.Ill.1990); Fed.R.Bankr.P. 3002-3005 (specifying procedures for filing proofs of claim). Because administrative expense claimants — who it might be more appropriate to refer to as “request-ors” — do not file proofs of claim, the deadlines set for filing a proof of claim do not"
},
{
"docid": "12927847",
"title": "",
"text": "genuine issue exists “unless there is sufficient evidence favoring the nonmoving 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.” Id. at 249-50, 106 S.Ct. 2505 (citation omitted). On the other hand, if “there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper.” Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) (citation omitted). “The non-moving party must show that there is more than a metaphysical doubt regarding a material fact and may not rely solely on self-serving conclusory statements.” In re Jarrell, 251 B.R. 448, 450-451 (Bankr.S.D.N.Y.2000). Here, certain relevant facts, set forth above, are not in dispute. Discussion A. IRS’s Request for $581,04.0 of Taxes and Interest for the Short Period The Trustee argues that the IRS’s August 1, 2006 request for taxes and interest for the Short Period (the “Short Period Request”) is time barred because it was filed after the bar date for filing requests for payment of administrative expenses, December 23, 2002 (the “Administrative Bar Date”), and does not amend a timely filed request for payment of that expense. This argument is based on the reasoning in this Court’s decision dated March 26, 2007 disallowing the IRS’s request for payment of penalties and interest for the failure to pay estimated taxes for the 2001 tax year on the basis that this request was untimely. In re PT-1 Commc’ns, Inc., 386 B.R. 402 (Bankr.E.D.N.Y.2007). The IRS argues that the untimely Short Period Request should be allowed on the basis of excusable neglect because the Administrative Bar Date was only three months after PT-1 submitted its tax return for the Short Period. Bankruptcy Rule 3003(c)(3) provides that a court “shall fix” a bar date by which proofs of claim in a Chapter 11 case shall be filed. Fed. R. Bankr.P. 3003(c)(3). Although there is no provision relating to a bar date for requesting an administrative expense payment,"
},
{
"docid": "8274847",
"title": "",
"text": "a deadline for the filing of requests for administrative expenses. See In re Hirsch, Case No. 12-03851, 550 B.R. 126, 2016 WL 2898061 (Bankr.W.D.Mich. May 13, 2016) (citations omitted). Although section 503(a) refers to timely requests for administrative expenses, it does not actually impose a firm time period within which such a request must be filed. Id. (citations omitted); see 11 U.S.C. § 503(a). Instead, absent any explicit or implicit directive in the Bankruptcy Code or an applicable rule, bankruptcy courts have the inherent authority under section 503(a) and section 105(a) to establish the time by which a request for an administrative expense must be made. See, e.g., Hall Fin. Group, Inc. v. DP Partners, Ltd. P’ship (In re DP Partners Ltd. P’Ship), 106 F.3d 667, 671-72 (5th Cir.1997) (bankruptcy courts have discretion to establish deadlines for filing requests for administrative expenses); In re Chicago Pacific Corp., 773 F.2d 909, 917 (7th Cir.1985) (request for administrative expense must be made within reasonable time). Nonetheless, even where the Bankruptcy Code or an applicable rule provides an explicit or implicit deadline, the court may, “for cause,” allow a tardily filed request for an administrative expense. 11 U.S.C. § 503(a). In Hirsch, this court declined to impose a deadline for the filing of fee applications after voluntary dismissal of a Chapter 13 case. Based on the facts at issue, the court in Hirsch reasoned that the attorney for the debtor had insufficient time to file a fee application requesting an administrative expense in light of, among other things, its duty to promptly seek dismissal on behalf of its client. In re Hirsch, Case No. 12-03851, 550 B.R. 126, 2016 WL 2898061 (Bankr.W.D.Mich. May 13, 2016). Accordingly, because neither the Bankruptcy Code nor any applicable rule contain an express or implicit deadline for the filing of a fee application requesting an administrative expense after dismissal, the Hirsch court concluded that the request was timely under section 503(a). Id. The court further observed that while no prejudice to the debtor or any other party occurred by deeming the request timely, the same could not be"
},
{
"docid": "18536202",
"title": "",
"text": "apply to them. See William L. Norton, Jr., Norton Bankruptcy Law and Practice 2d § 42:14, at 42-73 to 42-74 (1994) (noting that courts have found that the proof of claim provisions of the Code and Rules do not apply to administrative expenses and concluding that administrative expense claimants are apparently not subject to the bar dates for filing claims in Rule 3002). The Official Proof of Claim Form for the United States Bankruptcy Courts also supports this result in that it provides: NOTE: This form should not be used to make a claim for an administrative expense arising after the commencement of the case. A “request” for payment of an administrative expense may be filed pursuant to 11 U.S.C. § 503. Official Bankr.Form 10; 11 U.S.C. A number of courts have found that the conversion of a case from one pending under Chapter 11 to one pending under Chapter 7 changes the requirements for preconversion administrative expense claimants, such that they are to file proofs of claim by the deadline, or bar date, noticed by the court after the conversion. See, e.g., In re De Vries Grain & Fertilizer, Inc., 12 F.3d 101 (7th Cir.1993); United States v. Ginley (In re Johnson), 901 F.2d 513 (6th Cir.1990); United States v. Brandt (In re Lissner), 119 B.R. 143 (N.D.Ill.1990); In re Sea Air Shuttle, Corp., 168 B.R. 501 (Bankr.D.Puerto Rico 1994); In re West Johnson Corp., 96 B.R. 182 (Bankr.W.D.Wis.1988); In re Transouth Truck Equipment, Inc., 87 B.R. 937 (Bankr.E.D.Tenn.1988). This Court respectfully disagrees with these courts. Section 348 of the Code stipulates the effects of conversion. Rule 1019 implements § 348. Fed.R.Bankr.P. 1019 advisory committee’s note (1983). Rule 1019 provides for a new time period for filing claims, and notes that claims actually filed by a creditor in the superseded case will be deemed filed in the Chapter 7 case. Fed.R.Bankr.P. 1019(2) & -(3). The Rule requires a debtor to file a final report and a schedule of postpetition debts within 15 days after the entry of the order of conversion. Fed.R.Bankr.P. 1019(5). Part six of the Rule requires"
}
] |
467898 | members of appellant’s court-martial on the charge of indecent acts with a person under the age of 16. See Article 51(c), UCMJ, 10 USC § 851(c) and R.C.M. 920(a), Manual for Courts-Martial, United States (2000 ed.). Appropriate instructions means those instructions necessary for the members to arrive at an intelligent decision concerning appellant’s guilt. See United States v. McGee, 1 MJ 193, 194 (CMA 1975); United States v. Gaiter, 1 MJ 54, 56 (CMA 1975); United States v. Graves, 1 MJ 50, 53 (CMA 1975). An intelligent or rational decision on a person’s guilt requires consideration of the elements of a charged offense, the evidence pertaining to those elements, and applicable principles of law necessary to decide the case. See REDACTED United States v. Rowe, 11 MJ 11, 14 (CMA 1981). In the military justice system, it is the military judge who is required to tailor the instructions to the particular facts and issues in a case. See United States v. Jackson, 6 MJ 261, 263 n. 5 (CMA 1979); United States v. Groce, 3 MJ 369, 370-71 (CMA 1977). In this light, we initially note that indecent acts with a person under the age of 16 is not specifically proscribed as one of the enumerated offenses in Articles 77 through 133, UCMJ, 10 USC §§ 877-993. The Code expressly prohibits sexual intercourse between a military person and a person under the age of 16. See Article 120(b), UCMJ, 10 USC § | [
{
"docid": "17039890",
"title": "",
"text": "is not requested by a party, the military judge may have a sua sponte duty to give it if the issue is reasonably raised by some evidence. See United States v. Barnes, 39 MJ 230, 232 (CMA 1994) (affirmative-defense instruction). “It is not necessary that the evidence which raises an issue be compelling or convincing beyond a reasonable doubt____ Instead, the instructional duty arises whenever ‘some evidence’ is presented to which the fact finders might ‘attach credit if they so desire.” United States v. Jackson, 12 MJ 163, 166-67 (CMA 1981) (citations omitted). Furthermore, any doubts as to whether the evidence raises the issue should be resolved in favor of the accused. United States v. Steinruck, 11 MJ 322, 324 (CMA 1981). This Court reviews a military judge’s decision to give an instruction, as well as the substance of an instruction, de novo. United States v. Maxwell, 45 MJ 406, 424-25 (1996). Specifically, with regard to “the military judge’s determination that a lesser offense is, or is not, in issue,” this Court has stated that “an appellate tribunal must independently evaluate the evidence to determine whether or not an accused has been deprived of his right to have a court-martial consider all reasonable alternatives of guilt.” United States v. Clark, 22 USCMA 576, 580, 48 CMR 83, 87 (1973). The Rules for Courts-Martial require certain instructions on findings, including “[a] description of the elements of each lesser included offense in issue.” RCM 920(e)(2). Our case law indicates that this requirement is well-established. See Clark, supra at 577, 48 CMR at 84 (“[T]his Court has consistently followed the rule that the military judge is required to instruct, sua sponte, on any and all lesser included offenses for which there is in the record some evidence reasonably placing these offenses in issue.”). 1. Waiver RCM 920(f) provides: “Failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes waiver of the objection in the absence of plain error.” This rule represents a determination by the President that an attorney may make tactical decisions at"
}
] | [
{
"docid": "17201451",
"title": "",
"text": "did more than “merely afford opportunities or facilities for the commission of the offense” and, instead, “originate[d] a criminal design” and “induee[d] commission of the crime,” then “the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” — U.S. at -, 112 S.Ct. at 1540. Accord United States v. Cooper, 35 MJ 417, 425 (CMA 1992); United States v. Whittle, 34 MJ 206, 208 (CMA 1992); United States v. Vanzandt, 14 MJ 332, 342-43 (CMA 1982). See also RCM 916(g), Manual for Courts-Martial, United States, 1984 (“It is a defense that the criminal design or suggestion to commit the offense originated in the Government and the accused had no predisposition to commit the offense.”). As with any affirmative defense, a military judge has a sua sponte duty to offer appropriate instructions to the members if entrapment is reasonably raised by the evidence. See United States v. Williams, 21 MJ 360, 362 (CMA 1986). Accord United States v. Buckley, 35 MJ 262, 263 (CMA 1992); United States v. Rankins, 34 MJ 326, 328 (CMA 1992). See also RCM 920(e)(3). Absence of a defense request for such an instruction does not waive it. United States v. Taylor, 26 MJ 127, 129 (CMA 1988), relying on Article 51(c), UCMJ, 10 USC § 851(c). But cf. RCM 920(f). As the Court noted in United States v. Taylor, supra at 129, “Of course, the military judge’s duty to give the instruction exists only when the evidence reasonably raises the affirmative defense.” In an almost uncanny contemplation of facts like those in this case, the Supreme Court hypothesized in Jacobson: Thus, an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs, and, if the offer is accepted, make an arrest on the spot or later. In such a typical case, or in a more elaborate “sting” operation involving government-sponsored fencing where the defendant is simply provided with the opportunity to commit a crime, the entrapment defense is of little use because the"
},
{
"docid": "12137800",
"title": "",
"text": "learned after the incident that the victim was under age, but at the time of the offense, he believed that she was at least 16 years old or older. To this state of affairs the military judge had said: “It doesn’t matter what you thought when it took place — ”. 7. The Court of Military Review concluded that this response rendered accused’s pleas improvident, stating: We find that the private, consensual, noncommercial, heterosexual act of foreplay committed by the 22-year-old married Airman Strode was beyond the “outer limits of what [can] be sustained as indecent____ [Quoting United States v. Woodard, 23 MJ 514, 517 (AFCMR 1986), vacated, 23 MJ 400(CMA), findings set aside on other grounds, 24 MJ 514 (AFCMR 1987); contra United States v. Zelenski, 24 MJ 1 (CMA 1987).] We conclude that when the victim’s age is disregarded, Airman Strode’s conduct was not criminal.... 39 MJ at 512. This holding is clearly at odds with the military judge’s comment to the accused. 8. The real issue in this case is: whether the military judge erred when he concluded that the accused’s belief as to the age of the victim “doesn’t matter.” 9. Does it matter? In United States v. Sadler, 29 MJ 370, 377-78 (CMA 1990), we expressed, in dicta, the belief that the defense of mistake as to the victim’s age might lead a “factfinder” to “conclude that the circumstances leading to an accused’s mistake about age were so understandable that the conduct simply did not bring discredit upon the armed forces....” Thus, the defense might be available to an offense founded upon the general article, Article 134 of the Code. The defense is not, however, presently available to the “strict liability” offenses of carnal knowledge and sodomy. Arts. 120(b) and 125, UCMJ, 10 USC §§ 920(b) and 925, respectively. 10. Again, in United States v. Stocks, 35 MJ 366 (CMA 1992), we had occasion to consider under what circumstances sexual acts not otherwise specifically proscribed by the Uniform Code of Military Justice might constitute “indecent acts” founded upon the general article, Article 134. There, we"
},
{
"docid": "12120954",
"title": "",
"text": "In the sense that an intent to do the actus reus (here, an act resulting in bodily harm) is a general intent, the military judge was correct. See United States v. Redding, 14 USCMA 242, 244-45, 34 CMR 22, 24-25 (1963); 2 Wharton’s Criminal Law § 178 at 295 (C. Tortia 14th ed.1979). See also para. 3-107b, Military Judges’ Benchbook at 3-219 (1 May 1982) (“A T batteryd is defined as an unlawful and intentional” crime). See generally W. LaFave and A. Scott, Substantive Criminal Law § 3.5(e) at 313 (1986). D Sufficiency of Evidence The final question we must decide is whether the prosecution introduced sufficient evidence to prove beyond a reasonable doubt that appellant intentionally had unprotected sexual intercourse with his sexual partners. See generally Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The Court of Military Review noted the evidence introduced at this trial and held that this evidence established this intent uncontrovertedly. 36 MJ at 550-51. We agree. II The second issue in this case is whether the military judge properly found appellant guilty of committing indecent acts, in violation of Article 134, as a lesser-included offense of the charged offense of rape, a violation of Article 120. See Art. 79, UCMJ, 10 USC § 879. We think so. Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). See also United States v. Teters, 37 MJ 370 (CMA 1993), cert. denied, — U.S. -, 114 S.Ct. 919, 127 L.Ed.2d 213 (1994). Article 120 proscribes rape as follows: (a) Any person subject to this chapter who commits an act of sexual intercourse [with a female not his wife], by force and without [her] consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.[ ] Paragraph 45, Part IV, Manual, supra, explains the elements of this offense, as follows: b. Elements. (1) Rape. (a) That the accused committed an act of sexual intercourse with a certain female; (b) That the female was not the accused’s wife;"
},
{
"docid": "13623105",
"title": "",
"text": "50 MJ 451, 455 (1999); United States v. Rowe, 11 MJ 11, 14 (CMA 1981). In the military justice system, it is the military judge who is required to tailor the instructions to the particular facts and issues in a case. See United States v. Jackson, 6 MJ 261, 263 n. 5 (CMA 1979); United States v. Groce, 3 MJ 369, 370-71 (CMA 1977). In this light, we initially note that indecent acts with a person under the age of 16 is not specifically proscribed as one of the enumerated offenses in Articles 77 through 133, UCMJ, 10 USC §§ 877-993. The Code expressly prohibits sexual intercourse between a military person and a person under the age of 16. See Article 120(b), UCMJ, 10 USC § 920(b). Consent is not an element of this offense, and only the act of intercourse need be proven in addition to the age of the victim and her marital status. See para. 45b(2), Part IV, Manual, swpra. The Uniform Code also prohibits sodomy regardless of the age and marital status of the participants. Article 125, UCMJ, 10 USC § 925. Again, consent is not an element of the offense, although the President has made it a sentence enhancement factor. See para. 51e, Part IV, Manual, supra. Otherwise, the Uniform Code of Military Justice does not expressly address sexual activity between a service person and a person under 16 years old. Military law, however, has recognized that the offense of “indecent acts or liberties with a child” may be prosecuted at court-martial as a service discredit, or disorder, under Article 134, UCMJ, 10 USC § 934. See para. 87, Part IV, Manual, supra. This Court long ago in United States v. Brown, 3 USCMA 454, 13 CMR 10 (1953) recognized this offense as being modeled on District of Columbia Code Ann. 22 § 3501 (1948). We said: The evident purpose of this type of legislation is to protect children under a certain age from those acts which have a tendency to corrupt their morals, and if the many variations in which it is possible to"
},
{
"docid": "12051403",
"title": "",
"text": "specification of Charge I stated “with premeditation.” In response, the military judge stated, “You may consider my instruction on unpremeditated — attempted unpremeditated murder to be a lesser included offense of premeditated murder.” He then instructed the panel on the elements of premeditated murder. DISCUSSION Article 51(c), UCMJ, 10 USC § 851(c), requires the military judge to instruct court members on all the elements of the charged offenses. RCM 920(e)(7), Manual for Courts-Martial, United States, 1984, states, additionally, that the military judge shall provide the members with “[s]uch other explanations, descriptions, or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given.” Article 80, UCMJ, 10 USC § 880, defines an attempt as an “act, done with specific intent to commit an offense ..., amounting to more than mere preparation and tending, even though failing, to effect its commission.” For a conviction of attempted murder to be sustained, this Court has repeatedly held that there must be a specific intent to kill. See, e.g., United States v. Allen, 21 MJ 72, 73 (CMA. 1985). Specific intent to kill requires proof either of a premeditated design to kill or an intentional act, the natural and probable consequences of which will result in death. Para. 43c(2)(a) and (3)(a), Part TV, Manual, supra. Thus, it is apparent that, [although a serviceperson may be convicted of murder if he commits homicide without an intent to kill, but with an intent to “inflict great bodily harm,” see Article 118(2), ..., [this] state[ ] of mind do[es] not suffice to establish attempted murder. United States v. Roa, 12 MJ 210, 212 (CMA 1982). Significantly, the panel found SPC Grooters guilty of the specification of Charge I, but excepted the words “with premeditation” and returned a finding of not guilty to the excepted words. Thus, it is apparent that the panel relied on the lesser-ineluded offense of attempted unpremeditated murder. A finding of an intent to inflict great bodily harm would not support that conviction, although the panel was instructed that it could"
},
{
"docid": "12049868",
"title": "",
"text": "for 40 years; and to be dishonorably discharged from the service. The Court of Military Review found the sentence to be “appropriate.” 36 MJ at 997. 43. Neither appellant nor the Government cite legal authorities as to the scope of our review for sentence appropriateness. It is well-settled, however, that our review is limited to questions of law. Art. 67(c), UCMJ, 10 USC § 867(c) (1989). See United States v. Olinger, 12 MJ 458, 460 (CMA 1982), citing United States v. Doran, 9 MJ 385, 386 (CMA 1980); United States v. Dukes, 5 MJ 71, 72-73 (CMA 1978). First, and obviously, we review sentences to determine if they are authorized by the maximum-punishment and the sentencing rules found in the Manual for Courts-Martial. See Art. 56, UCMJ, 10 USC § 856. Likewise, we review sentences to ensure they are not “cruel or unusual punishment” within the meaning of Article 55, UCMJ, 10 USC § 855, or “cruel and unusual punishment” within the meaning of the Eighth Amendment to the Constitution. See United States v. Ballard, 20 MJ 282 (CMA 1985). Also, sentences may be unlawful if based upon “outside influence,” United States v. Accordino, 20 MJ 102, 104 (CMA 1985); or “unlawful command influence,” United States v. Thomas, 22 MJ 388, 394 (CMA 1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987). See MiLR.Evid. 606(b). It should also be noted that, to the extent sentences are affected by trial errors, such as erroneous rulings on evidence, erroneous instructions, or lack of proper instructions, we have often reviewed such errors for prejudice. Art. 59(a), UCMJ, 10 USC § 859(a). Additionally, we have reviewed sentences to determine if they were the result of improper or inflammatory argument by trial counsel. United States v. Clifton, 15 MJ 26 (CMA 1983). 44. After careful review of this record of trial and the evidence introduced before the members both on findings and sentence, we conclude that the sentence, albeit in our experience it contains rather lengthy confinement, is nevertheless lawful. United States v. Olinger, 12 MJ at 460. The decision of"
},
{
"docid": "21686471",
"title": "",
"text": "order to make clear the overlapping relationship between them. Where, as here, that relationship is clear in the pleadings and is confirmed by the evidence, the military judge’s failure to treat them as multi plicious is plain error. United States v. Allen, 16 MJ 395, 396 (CMA 1983); United States v. Holt, 16 MJ 393 (CMA 1983). Therefore, appellant’s multiplicity complaint that was available but unasserted at trial remains, nonetheless, alive and well on appeal. Cf. Mil.R.Evid. 103(d), Manual for Courts-Martial, United States, 1984. Appellant is entitled to consolidation of these specifications. II The question remains whether Waits suffered substantial harm from this multiplicity. Appellant points out that the military judge expressly held that the two offenses were separate for findings and sentence when he computed the maximum imposable confinement to be 12 years. As such, appellant argues that he is entitled to sentence relief. A decision whether appellant is entitled to sentence relief and, if so, what sort of relief is not so simple as appellant suggests. When error has been uncovered on appeal, an appellate court must determine whether “the error materially prejudices the substantial rights of the accused.” Art. 59(a), UCMJ, 10 USC § 859(a). If the appellate court concludes that there is a fair risk of such prejudice, then it must address the sentence in order to assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed. Only in this way can the requirements of Article 59(a), UCMJ, 10 USC § 859(a), be reconciled with the Code provisions that findings and sentence be rendered by the court-martial, see Articles 51 and 52, UCMJ, 10 USC §§ 851 and 852, respectively. United States v. Suzuki, 20 MJ 248, 2496r (CMA 1985). In United States v. Sales, 22 MJ 305 (CMA 1986), we had occasion to apply these principles in the context of a multiplicity error. There, like here, the military judge had treated as separate for both findings and sentence specifications which the Court of Military Review later had concluded were multiplicious for both purposes."
},
{
"docid": "12137801",
"title": "",
"text": "military judge erred when he concluded that the accused’s belief as to the age of the victim “doesn’t matter.” 9. Does it matter? In United States v. Sadler, 29 MJ 370, 377-78 (CMA 1990), we expressed, in dicta, the belief that the defense of mistake as to the victim’s age might lead a “factfinder” to “conclude that the circumstances leading to an accused’s mistake about age were so understandable that the conduct simply did not bring discredit upon the armed forces....” Thus, the defense might be available to an offense founded upon the general article, Article 134 of the Code. The defense is not, however, presently available to the “strict liability” offenses of carnal knowledge and sodomy. Arts. 120(b) and 125, UCMJ, 10 USC §§ 920(b) and 925, respectively. 10. Again, in United States v. Stocks, 35 MJ 366 (CMA 1992), we had occasion to consider under what circumstances sexual acts not otherwise specifically proscribed by the Uniform Code of Military Justice might constitute “indecent acts” founded upon the general article, Article 134. There, we con- eluded that acts amounting to “mere foreplay” do not constitute indecent acts if the resulting sexual intercourse in and of itself would not constitute an unlawful act. However, we were quick to qualify the opinion by reminding bench and bar that this holding was “logically and legally distinguishable from a situation in which the ultimate act of sexual copulation that would follow such foreplay is specifically proscribed in Article 120(b) or 125 of the Code.” 35 MJ at 367 (citations omitted). Stocks focused upon the character of the conduct rather than upon the age element alleged in this case. 11. These two opinions are clearly reconcilable. We construe them to say that foreplay leading to lawful sexual intercourse may not be the basis for the charge of committing indecent acts. Sexual acts may be made the basis for an indecent-acts offense if the resulting conduct is service-discrediting or if the acts constitute foreplay to the ultimate criminal sexual acts of sodomy or carnal knowledge. Because mistake of fact as to the age of the"
},
{
"docid": "13623103",
"title": "",
"text": "the nature of any conversations between [appellant] and [CAB], along with the other evidence on this issue.” Then the question goes on about in the Charge under the UCMJ 134, Specification 2, which is the indecent acts with a child, which has to do with [KAS], whether you consider [appellant’s] age education, experience, prior contact with her, or proximity of age in determining whether the acts were indecent, as required by the third element [of the offense]. Specifically why we outline this on page 4 is, that is specifically addressed and applies to the issue of mistake of fact, that whether the accused was mistakenly, honestly, and reasonable—his belief that there was consent to the sodomy—forcible sodomy. So we outline—these are the circumstances you ought to consider in weighing that—the prior contact and all those things. Now when you’re dealing with [indecent acts], we don’t specifically talk about that. But my instruction to you is you should consider all the evidence you have, and you’ve heard on the issue of what’s indecent. (R. 482-483). The members then departed once more to deliberate. Less than 30 minutes later they returned a guilty finding to, inter alia, committing indecent acts on KAS, a female under the age of 16. The Adequacy of the Judge’s Instruction Our concern in this case is whether the military judge appropriately instructed the members of appellant’s court-martial on the charge of indecent acts with a person under the age of 16. See Article 51(c), UCMJ, 10 USC § 851(c) and R.C.M. 920(a), Manual for Courts-Martial, United States (2000 ed.). Appropriate instructions means those instructions necessary for the members to arrive at an intelligent decision concerning appellant’s guilt. See United States v. McGee, 1 MJ 193, 194 (CMA 1975); United States v. Gaiter, 1 MJ 54, 56 (CMA 1975); United States v. Graves, 1 MJ 50, 53 (CMA 1975). An intelligent or rational decision on a person’s guilt requires consideration of the elements of a charged offense, the evidence pertaining to those elements, and applicable principles of law necessary to decide the case. See United States v. Smith,"
},
{
"docid": "12125263",
"title": "",
"text": "The decision of the United States Air Force Court of Military Review is affirmed. . See 41 MJ 213, 229 n. * (1994). . The elements of a violation of Article 133, Uniform Code of Military Justice, 10 USC § 933, are as follows: (1) That the accused did or omitted to do certain acts; and (2) That, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman. Para. 59b, Part IV, Manual for Courts-Martial, United States, 1984. . The elements of fraternization charged under Article 134, UCMJ, 10 USC § 934, would be as follows: (1) That the accused was a commissioned or warrant officer; (2) That the accused fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner; (3) That the accused then knew the person(s) to be (an) enlisted member(s); (4) That such fraternization violated the custom of the accused’s service that officers shall not fraternize with enlisted members on terms of military equality; and (5) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Para. 83b, Part IV, Manual, supra. This paragraph constitutes explicit notice to servicemembers that fraternization is an offense. . Amendment to Article 2, UCMJ, 10 USC § 802, was designed to legislatively overrule United States v. Russo, 1 MJ 134 (CMA 1975), and United States v. Catlow, 23 USCMA 142, 48 CMR 758 (1974). See S.Rep. No. 197, 96th Cong., 1st Sess. 121-23 (1979), reprinted in 1979 U.S.Code Cong. & Admin. News 1826-28. See also United States v. Clardy, 13 MJ 308 (CMA 1982). . United States v. Kossman, 38 MJ 258 (CMA 1993) , overruled United States v. Burton, 21 USC-MA 112, 44 CMR 166 (1971). . United States v. Johnston, 41 MJ 13 (CMA 1994) , overruled United States v. Arguello, 29 MJ 198 (CMA 1989). United States v. Teters, 37 MJ 370 (CMA 1993), cert. denied, — U.S.-, 114 S.Ct. 919, 127 L.Ed.2d"
},
{
"docid": "21773283",
"title": "",
"text": "acts and Kiggins’ sodomy of the Korean girl. Art. 77, UCMJ, 10 USC § 877. The particular specifications of which appellant stands guilty as an aider and abettor state: CHARGE I: Violation of the UCMJ, Article 80 SPECIFICATION: In that [appellant] did, at an apartment in Yongtae-ri, Republic of Korea, a city located outside the territorial limits of the United States, on or about 25 May 1988, wrongfully commit indecent acts with CHO, Sun Cha, by placing his penis against the anus of the said CHO, Sun Cha and ejaculating on her anal area. Charge II: Violation of the UCMJ, Article 125 Specification: In that [appellant] did, at an apartment in Yongtae-ri, Republic of Korea, a city located outside the territorial limits of the United States, on or about 25 May 1988 commit forcible sodomy with CHO, Sun Cha, by force and without the consent of the said CHO, Sun Cha. Prior to findings, appellant moved that these offenses be considered multiplicious for sentencing. The military judge had earlier recognized a potential for multiplicity for sentencing purposes. Nonetheless, he deferred ruling on appellant’s motion until “the conclusion of any evidence, should it become necessary.” The issue, however, was never raised again, and no formal ruling was ever made by the military judge on this question at trial. The parties to this appeal have presumed that the military judge did not treat the above findings of guilty as multiplicious for sentencing. See generally United States v. Baker, 14 MJ 361, 370 (CMA 1983). We note, however, that appellant was eventually found guilty of both offenses which were the subject of his deferred multiplieity-for-sentence motion. Thus, in accordance with the judge’s own words, action on the motion was necessary. See United States v. Mullens, 29 MJ 398, 399 (CMA 1990); United States v. DeYoung, 29 MJ 78 (CMA 1989). In addition, the maximum authorized punishment for the forcible-sodomy offense, for which appellant was subsequently found guilty, was 20 years’ confinement. See para. 51e(1), Part IV, Manual for Courts-Martial, United States, 1984. Yet, the sentence which appellant actually received for all four of"
},
{
"docid": "12120955",
"title": "",
"text": "case is whether the military judge properly found appellant guilty of committing indecent acts, in violation of Article 134, as a lesser-included offense of the charged offense of rape, a violation of Article 120. See Art. 79, UCMJ, 10 USC § 879. We think so. Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). See also United States v. Teters, 37 MJ 370 (CMA 1993), cert. denied, — U.S. -, 114 S.Ct. 919, 127 L.Ed.2d 213 (1994). Article 120 proscribes rape as follows: (a) Any person subject to this chapter who commits an act of sexual intercourse [with a female not his wife], by force and without [her] consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.[ ] Paragraph 45, Part IV, Manual, supra, explains the elements of this offense, as follows: b. Elements. (1) Rape. (a) That the accused committed an act of sexual intercourse with a certain female; (b) That the female was not the accused’s wife; and (c) That the act of sexual intercourse was done by force and without her consent. Indecent acts are not particularly proscribed by the Uniform Code of Military Justice, but they are generally punished under Article 134. Paragraph 90, Part IV, Manual, supra, explains the elements of this offense as follows: b. Elements. (1) That the accused committed a certain wrongful act with a certain person; (2) That the act was indecent; and (3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Only one offense, rape, contains an element which the other does not. Rape requires an act of sexual intercourse which on its face is a sexual act. Indecent acts requires a sexually related act not necessarily rising to the level of sexual intercourse. See para. 90(c). Rape requires use of force and lack of consent of the victim, while indecent acts require a wrongfulness not necessarily rising"
},
{
"docid": "7250498",
"title": "",
"text": "concurrence of the defense, directed that the single specification of Charge II be split into five separate specifications. The court members returned separate findings of guilty on each specification. Evidently, the Court of Military Review intended to set aside all findings of guilty of conspiracy because it did not approve Charge II or any specification thereunder. 32 MJ at 947. Thus, the Court of Military Review affirmed the findings of guilty of only two offenses: sodomy and false swearing, and authorized a rehearing on sentence as to these offenses. 32 MJ at 947. . We granted review despite the fact that the rehearing on sentence has not yet been conducted. The Government did not challenge the filing of the petition as premature. United States v. Best, 4 USCMA 581, 16 CMR 155 (1954); see United States v. Best, 6 USCMA 39, 19 CMR 165 (1955). See also United States v. Young, 14 MJ 169 (CMA 1982) (summary disposition); Webb v. United States, 1 MJ 40 (CMA 1975). . Evidently, Massachusetts regards 16 as the age of consent for fellatio. Commonwealth v. Gallant, 373 Mass. 577, 369 N.E.2d 707, 713 (1977). Admittedly, no age of consent is provided in the Uniform Code of Military Justice for fellatio; however, the age of consent for normal heterosexual intercourse is also 16. Art. 120(b), UCMJ, 10 USC § 920(b). . Thus, appellant's statistical surveys purporting to indicate present-day attitudes toward fellatio by Americans are singularly unhelpful. . Coincidentally, § 16-6-2, Georgia Code Ann. (1984), defined \"sodomy\" as “perform[ing] or submitting] to any sexual act involving the sex organs of one person and the mouth ... of another____” 478 U.S. 186, 188 n. 1, 106 S.Ct. 2841, 2842 n. 1, 92 L.Ed.2d 140 (1986). . Justice Stevens, with whom Justices Brennan and Marshall joined, dissenting, pointed out that “the rationale of the Court’s opinion applies equally to the prohibited conduct regardless of whether the parties who engage in it are married or unmarried, or are of the same or different sexes.” 478 U.S. at 214, 106 S.Ct. at 2856 (footnote omitted). . According to the"
},
{
"docid": "12125262",
"title": "",
"text": "on leadership, discipline, and command. We are a community mainly of good soldiers who do not conduct themselves such that leadership, discipline, and command are impaired. Our views of our service are reflected in our views on what is and is not acceptable behavior. The Johanns [I] majority, however, looked simplistically to erosion of caste distinctions and diagnosed the end of the custom prematurely, after only a superficial examination. 37 MJ at 880-81. 28. Overruling Johanns I strengthens prior cases as to the responsibility of a mili tary officer and is consistent with the historical development of fraternization as well as with intervening developments. We noted in United States v. Frazier, 34 MJ 194, 198 (CMA 1992), “that one critically important responsibility of a military officer is to inspire the trust and respect of the enlisted soldiers who must obey his orders and follow his leadership.” See also United States v. Hartwig, 39 MJ 125 (CMA 1994); United States v. Maderia, 38 MJ 494 (CMA 1994); United States v. Moore, 38 MJ 490 (CMA 1994). The decision of the United States Air Force Court of Military Review is affirmed. . See 41 MJ 213, 229 n. * (1994). . The elements of a violation of Article 133, Uniform Code of Military Justice, 10 USC § 933, are as follows: (1) That the accused did or omitted to do certain acts; and (2) That, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman. Para. 59b, Part IV, Manual for Courts-Martial, United States, 1984. . The elements of fraternization charged under Article 134, UCMJ, 10 USC § 934, would be as follows: (1) That the accused was a commissioned or warrant officer; (2) That the accused fraternized on terms of military equality with one or more certain enlisted member(s) in a certain manner; (3) That the accused then knew the person(s) to be (an) enlisted member(s); (4) That such fraternization violated the custom of the accused’s service that officers shall not fraternize with enlisted members on terms of military equality; and (5) That, under the circumstances, the"
},
{
"docid": "23470539",
"title": "",
"text": "guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses. Article 66(e) requires the Courts of Criminal Appeals to conduct a de novo review of legal and factual sufficiency of the case. See United States v. Cole, 31 MJ 270, 272 (CMA 1990). The court may affirm a conviction only if it concludes, as a matter of factual sufficiency, that the evidence proves appellant’s guilt beyond a reasonable doubt. United States v. Sills, 56 MJ 239, 240-41 (2002); United States v. Turner, 25 MJ 324, 324-25 (CMA 1987). Although the court in the present case discussed the theoretical basis for a lesser standard of proof, it ultimately concluded that the evidence was sufficient to demonstrate appellant’s guilt beyond a reasonable doubt, thereby mooting any impact from its discussion of the lesser standard. See 54 MJ at 941. In the course of its discussion of factual sufficiency, the court also rejected appellant’s suggestion that appellate review for factual sufficiency under Article 66(c), UCMJ, required the court to apply the “presumption of innocence.” Id. at 940. The “presumption of innocence” is a longstanding feature of both military and civilian law and is set forth in the statutory requirement that, prior to findings, the members of a court-martial must be instructed “that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt.” See Art. 51(c)(1), UCMJ, 10 USC § 851(c)(1). The instruction, which does not literally employ a presumption, reminds the members of a critical fact—that the accused, as a matter of law, is innocent unless the members are satisfied the prosecution has proved each required element of the offense beyond a reasonable doubt. See 1 Barbara E. Bergman & Nancy Hollander, Wharton’s Criminal Evidence, §§ 2:2, 3:10, at"
},
{
"docid": "7250360",
"title": "",
"text": "the judge failed to instruct the members that the element of wrongful-' ness required to be proven by statute included knowledge of the drug’s nature as contraband. United States v. Ford, 23 MJ 331, 336 (CMA 1987). See United States v. Mance, 26 MJ at 254 and 256. Third, the judge failed to expressly instruct the members that they could not draw the permissive inference of wrongfulness including knowledge unless they disbelieved beyond a reasonable doubt appellant’s contrary evidence. Article 51(c), UCMJ, 10 USC § 851(c), and RCM 920(e)(1), Manual, supra, both provide that a military judge shall instruct the members of a court-martial on the elements of a charged offense. RCM 920(e)(7) also provides that instructions on findings shall include: Such other explanations, descriptions, or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given. The Discussion of this Manual provision further states: “Other matters which may be the subject of instruction in appropriate cases include: inferences ...” (Emphasis added.) In light of the above, it is no surprise that this Court has directed military judges to provide clear instruction to the members concerning use of urinalysis evidence and the permissible inference of wrongfulness in drug cases. United States v. Harper, 22 MJ at 164. We are also aware, however, that court-martial procedural rules permit counsel to request specific instructions from the military judge. RCM 920(c). In this regard, we note that the military judge has substantial discretionary power. See RCM 920(a), and RCM 920(c), Discussion. Moreover, we note that RCM 920(f) provides: (f) Waiver. Failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes waiver of the objection in the absence of plain error. The military judge may require the party objecting to specify in what respect the instructions given were improper. The parties shall be given the opportunity to be heard on any objection outside the presence of the members. Accordingly, absent plain error, we are generally not inclined to reverse a case where"
},
{
"docid": "1093644",
"title": "",
"text": "consent to the degree required in rape cases, to wit: that she did what she was able, under the circumstances, to prevent the act of intercourse. 2. The court was convinced beyond a reasonable doubt that (in addition to the other elements necessary) [the victim] did not consent to the lesser included offense of indecent assault. 22 MJ at 670 (emphasis added by CMR). As noted by the ACMR, Perry was convicted of the lesser offense of assault and battery, Art. 128, UCMJ, 10 USC § 928, not indecent assault. Art. 134. The Court of Military Review was understandably confused by the finding that lack of consent to intercourse was not proven as to rape but was proven as to assault. While we cannot account, in the instant case, for the military judge’s view of the essential elements of rape, see text, supra, there is no indication of Perry-like inconsistency here. . See United States v. Baran, 22 MJ 265, 267 (CMA 1986); United States v. Carr, 18 MJ 297 (CMA 1984); United States v. Wilson, 13 MJ 247, 251 (CMA 1982); United States v. Short, 4 USC-MA 437, 16 CMR 11 (1954). . See RCM 916(b), Manual for Courts-Martial, United States, 1984. . See n. 3, supra. . Of course, this case presents a scenario quite different from United States v. Cartwright, 13 MJ 174 (CMA 1982), where we concluded, as a matter of statutory construction, that an accused could not be convicted of aiding and abetting a larceny and knowingly receiving the same property."
},
{
"docid": "7250495",
"title": "",
"text": "concur. Judges CRAWFORD, GIERKE, and WISS did not participate. . At his court-martial, appellant was acquitted by the members of specifications alleging rape of MB; indecent assault upon MB; attempted sodomy with MB; and disobedience of a lawful order by driving an official government vehicle within 8 hours after consuming alcoholic beverages, in violation of Articles 120, 134, 80, and 92, Uniform Code of Military Justice, 10 USC §§ 920, 934, 880, and 892, respectively. The court-martial convicted appellant, contrary to his pleas, of five specifications of conspiracy: (1) to commit adultery with MB; (2) to commit wrongful sexual intercourse with KH and DJ; (3) to commit wrongful purchase and delivery of alcoholic beverages to minors; (4) to disobey a lawful order by driving a government vehicle for matters of personal convenience; and (5) to disobey a lawful order by driving a government vehicle after drinking alcoholic beverages. (Art. 81, UCMJ, 10 USC § 881). We note that the court-martial order (number 12-89) fails to state these specifications separately. In addition, the court-martial convicted appellant, contrary to his pleas, of separate specifications of disobeying a lawful order by driving a government vehicle for matters of personal convenience; committing sodomy with DJ (the basis of the granted issue); false swearing; wrongful purchase and delivery of alcoholic beverages to minors in violation of state law; and wrong fully having sexual intercourse with DJ, KH and MB. Arts. 92, 125, and 134, UCMJ, 10 USC §§ 892, 925, and 934, respectively. The Court of Military Review set aside appellant’s conviction of wrongfully having sexual intercourse and dismissed that specification. Recognizing that \"fornication is not prohibited under military law, or apparently, the laws of the Commonwealth of Massachusetts,\" the court found the other circumstances of the case insufficient to convert lawful conduct into criminal conduct under the general article. 32 MJ 941, 945 (1991). See United States v. Hickson, 22 MJ 146 (CMA 1986); United States v. Berry, 6 USC-MA 609, 20 CMR 325 (1956); United States v. Snyder, 1 USCMA 423, 4 CMR 15 (1952). In addition, that court, with government concession, set"
},
{
"docid": "13623104",
"title": "",
"text": "members then departed once more to deliberate. Less than 30 minutes later they returned a guilty finding to, inter alia, committing indecent acts on KAS, a female under the age of 16. The Adequacy of the Judge’s Instruction Our concern in this case is whether the military judge appropriately instructed the members of appellant’s court-martial on the charge of indecent acts with a person under the age of 16. See Article 51(c), UCMJ, 10 USC § 851(c) and R.C.M. 920(a), Manual for Courts-Martial, United States (2000 ed.). Appropriate instructions means those instructions necessary for the members to arrive at an intelligent decision concerning appellant’s guilt. See United States v. McGee, 1 MJ 193, 194 (CMA 1975); United States v. Gaiter, 1 MJ 54, 56 (CMA 1975); United States v. Graves, 1 MJ 50, 53 (CMA 1975). An intelligent or rational decision on a person’s guilt requires consideration of the elements of a charged offense, the evidence pertaining to those elements, and applicable principles of law necessary to decide the case. See United States v. Smith, 50 MJ 451, 455 (1999); United States v. Rowe, 11 MJ 11, 14 (CMA 1981). In the military justice system, it is the military judge who is required to tailor the instructions to the particular facts and issues in a case. See United States v. Jackson, 6 MJ 261, 263 n. 5 (CMA 1979); United States v. Groce, 3 MJ 369, 370-71 (CMA 1977). In this light, we initially note that indecent acts with a person under the age of 16 is not specifically proscribed as one of the enumerated offenses in Articles 77 through 133, UCMJ, 10 USC §§ 877-993. The Code expressly prohibits sexual intercourse between a military person and a person under the age of 16. See Article 120(b), UCMJ, 10 USC § 920(b). Consent is not an element of this offense, and only the act of intercourse need be proven in addition to the age of the victim and her marital status. See para. 45b(2), Part IV, Manual, swpra. The Uniform Code also prohibits sodomy regardless of the age and marital"
},
{
"docid": "7250359",
"title": "",
"text": "L.Ed.2d 454 (1979). See generally 2 Wigmore, Evidence § 457 at 569-72 (Chadbourn rev.1979). The admission of Sergeant Warren’s testimony thus was not egregious error. Finally, the members were not instructed that Sergeant Warren was an expert, and his testimony fit within the equivocations expressed by the defense expert himself. We find that no plain error existed in these circumstances. See generally Mil.R.Evid. 103(d). II The other issue raised by appellant on this appeal challenges the instructions given by the military judge to the members prior to findings. Appellate counsel argue that these instructions were so inadequate that the members were in effect invited to ignore the defense evidence of innocent ingestion and presume appellant’s ingestion was knowing and conscious. The dissenting judge on the Court of Military Review more clearly articulated purported defects in these instructions. First, he asserted that the judge’s instructions did not clearly delineate the two types of knowledge required for conviction of a drug-possession charge under Article 112a. See United States v. Crumley, 31 MJ 21, 23 (CMA 1990). Second, the judge failed to instruct the members that the element of wrongful-' ness required to be proven by statute included knowledge of the drug’s nature as contraband. United States v. Ford, 23 MJ 331, 336 (CMA 1987). See United States v. Mance, 26 MJ at 254 and 256. Third, the judge failed to expressly instruct the members that they could not draw the permissive inference of wrongfulness including knowledge unless they disbelieved beyond a reasonable doubt appellant’s contrary evidence. Article 51(c), UCMJ, 10 USC § 851(c), and RCM 920(e)(1), Manual, supra, both provide that a military judge shall instruct the members of a court-martial on the elements of a charged offense. RCM 920(e)(7) also provides that instructions on findings shall include: Such other explanations, descriptions, or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given. The Discussion of this Manual provision further states: “Other matters which may be the subject of instruction in appropriate cases include: inferences ...” (Emphasis added.)"
}
] |
62588 | OPINION OF THE COURT GREENBERG, Circuit Judge. I. INTRODUCTION This matter is before this court on an appeal from an order denying defendant ARCO Chemical Company’s (“ARCO”) motion for judgment as a matter of law, or in the alternative, for a new trial, or in the alternative, for a remittitur, entered on June 30, 1998, in this employment discrimination case following a jury verdict in favor of the plaintiff, William P. REDACTED Becker cross-appeals from the district court’s order of July 23, 1998, which granted in part and denied in part his motion to “mold” the verdict to include post-trial interest on the front pay award and pre-trial interest on the back pay award, and to reflect adverse tax consequences Becker suffered by virtue of the lump sum damages award on his age discrimination claims. See Becker v. ARCO Chem. Co., 15 F.Supp.2d 621, 639-40 (E.D.Pa.1998) (“Becker II”). Becker also cross-appeals from that aspect of the district court’s July 23, 1998 order which granted in part and denied in part his petition for attorney’s fees and costs. Id. Plaintiff sued ARCO under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. | [
{
"docid": "15096279",
"title": "",
"text": "MEMORANDUM EDUARDO C. ROBRENO, District Judge. Presently before the Court is a motion by defendant ARCO Chemical Company (“ARCO”) for judgment as a matter of law, or in the alternative for a new trial, or in the alternative, for remittitur. For the reasons contained herein, the Court denies ARCO’s motion. I. BACKGROUND The plaintiff, William P. Becker (“Becker”) sued his former employer, ARCO, for age discrimination in connection with his discharge from employment. Specifically, Becker alleged in a three-count complaint that the conduct of ARCO employees violated the Age Discrimination in Employment Act (“ADEA”) and the Pennsylvania Human Relations Act (“PHRA”), and constituted intentional infliction of emotional distress. The' Court granted summary judgment in favor of ARCO on the claim for intentional infliction of emotional distress. The remaining claims under the ADEA and the PHRA proceeded to trial. At the conclusion of an eleven-day jury trial at which twenty-one witnesses testified, the jury returned a verdict in favor of plaintiff. Becker was awarded $186,095 in back pay damages, $380,000 in front pay damages, and $170,000 in compensatory damages. The jury declined to award punitive damages or liquidated damages. In accordance with the verdict, the Court entered judgment in favor of plaintiff in the amount of $736,095. II. LEGAL STANDARD A. Judgment as a Matter of Law In ruling on a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), the evidence in the case must be viewed in the light most favorable to the successful party, and every reasonable inference therefrom must be drawn in that party’s favor. See Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 190 (3d Cir.1992); Fireman’s Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1178 (3d Cir.1976) (“The trial judge, in his review of the evidence, ... must expose the evidence to the strongest light favorable to the party against whom the motion is made and give him the advantage of every fair and reasonable inference”). It is impermissible to question the credibility of witnesses, or to weigh conflicting evidence as would a fact-finder. See Parkway Garage,"
}
] | [
{
"docid": "15096293",
"title": "",
"text": "to plaintiff, supports the jury’s finding that ARCO intentionally discriminated against Becker based on his age. Thus, the record is not “critically deficient of that minimum quantum of evidence from which the jury might reasonably afford relief,” Dawson, 630 F.2d at 959, and the Court may not disturb the jury’s verdict on liability. 2. Damages The jury found that ARCO discriminated against Becker and awarded Becker $736,095 in damages. This was comprised of $186,095 in back pay damages, $380,000 in front pay damages, and $170,000 in compensatory damages. ARCO alleges that Becker is not entitled to recover $380,000 in front pay because he ceased mitigating his damages six months before trial, and because his earlier efforts to seek new employment were sporadic at best. It is true that a plaintiff has a duty to mitigate his damages. Ford Motor Company v. EEOC, 458 U.S. 219, 232, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982); Maxfield v. Sinclair International, 766 F.2d 788, 796 (3d Cir.1985). However, it is the defendant who bears the burden of proving by a preponderance of the evidence that the plaintiff failed to mitigate his damages. Starceski v. Westinghouse Electric Corp., 54 F.3d 1089, 1101 (3d Cir. 1995); Anastasio v. Schering Corp., 838 F.2d 701, 707-708 (3d Cir. 1988); Herkalo v. National Liberty Corp., 1997 WL 408325 (E.D.Pa. 1997)(citing Booker v. Taylor Milk Co., Inc., 64 F.3d 860 (3d Cir. 1995)). The defendant can satisfy its burden by establishing that “substantially equivalent positions were available to [the plaintiff] and he failed to use reasonable diligence in attempting to secure such a position.” Anastasio, 838 F.2d at 707-08. At trial, Becker presented evidence of his efforts to secure employment after his discharge. Becker testified that, immediately after being discharged, he attempted to obtain consulting work. When that proved unsuccessful, he proceeded to check newspaper advertisements, submit resumes, and visit personnel agencies. In addition, the plaintiff submitted into evidence a substantial number of letters which were transmitted by him to various companies, and the rejection letters he received in response. ARCO responded with a chart summarizing the number of letters"
},
{
"docid": "23424269",
"title": "",
"text": "and order entered June 30, 1998. See Becker I, 15 F.Supp.2d at 600. Second, Becker petitioned the district court for an award of $562,421.25 in attorney’s fees and $36,613.95 in costs, and filed a separate motion to “mold” the verdict to include post-trial interest on the front pay award and pre-trial interest on the back pay award, and to reflect adverse tax consequences he suffered by reason of receiving his back pay and front pay award in a lump sum. By memorandum opinion and order entered July 23, 1998, the district court granted in part and denied in part Becker’s petition for attorney’s fees and costs, and his motion to mold the verdict. See Becker II, 15 F.Supp.2d at 621. Then on August 31, 1998, the district court entered an order denying plaintiffs motion for reconsideration of the prior July 23,1998 order in Becker II. ARCO appeals from the district court’s order in Becker I, and Becker cross-appeals from the district court’s order in Becker II and its order denying reconsideration. Becker does not appeal from the summary judgment on the intentional infliction of emotional distress claim. IV. DISCUSSION ARCO contends that it is entitled to a new trial on the federal and state age discrimination claims based in part on the district court’s erroneous admission of certain evidence pertaining to the circumstances surrounding ARCO’s discharge of Becker’s co-employee, Linwood Seaver. ARCO contends that the court should have excluded the evidence pursuant to Rules 404(b), 403 and 608(b). Principally, it claims that there was not a proper basis under Rule 404(b) for admitting the “manner” in which ARCO terminated Seaver. Alternatively, it argues that assuming ar-guendo that Rule 404(b) permitted the evidence’s admission, the district court should have excluded it under a balancing analysis pursuant to Rule 403. As previously mentioned, the district court permitted Becker to testify that, in August 1990, in connection with ARCO’s dismissal of Seaver, Ramey asked Becker to confirm Ramey’s understanding regarding the outcome of the “Fibersorb project,” a project on which Seaver had worked and Becker had supervised personally. Specifically, Ramey asked Becker to"
},
{
"docid": "15096329",
"title": "",
"text": "the outset of the proceedings and in the final charge that statements by counsel were not evidence in the case. The Court concludes that while the contested remarks in this case, were perhaps “intemperate,” Dunn, 1 F.3d at 1377, and “undignified,” Socony-Vacuum Oil Co., 310 U.S. at 152, 60 S.Ct. 811, and while some contained statements of personal belief, Anastasio v. Sobering, 838 F.2d at 706, whether taken singly or collectively, placed in context, and under the circumstances of the case, the remarks do not render the verdict the product of prejudice. C. Remittitur In the alternative to a new trial, ARCO moves for remittitur of the jury’s award for compensatory damages, back pay and front pay based on the fact that they are grossly excessive, unsupported by the evidence, and should shock the conscience of the Court. As has already been discussed, the Third Circuit found that evidence similar to the evidence presented in this ease was sufficient to support an award of $250,001 in compensatory damages. Bolden, 21 F.3d at 29. Therefore, the Court concludes that the jury’s award of $170,000 in compensatory damages is neither excessive nor clearly unsupported. With respect to the jury’s back pay and front pay awards, both were supported by the testimony of plaintiff’s expert. Mr. Verzilli, an economist presented by Mr. Becker, determined that, taking a reduction to present value into account, Mr. Becker’s back pay damages to be $186,095 and Mr. Becker’s future loss of earnings to be between $435,051 and $587,567. (Tr. 10/24/97 at 135-40; see also Pl.’s Ex. 329 a,b,c). The jury’s award of $186,095 in back pay corresponds exactly to the expert opinion, while the jury’s award of $380,000 in front pay actually falls below the range presented by plaintiff’s expert. Therefore, the Court does not find the jury’s award to be excessive, unsupported or shocking to the conscience. ORDER AND NOW, this 29th day of June, 1998, upon consideration of defendant ARCO’s motion for judgment as a matter of law, or in the alternative for a new trial, or in the alternative for remittitur (doc. no. 115),"
},
{
"docid": "23671507",
"title": "",
"text": "HEANEY, Circuit Judge. Charles Theodore Denesha brought this age discrimination suit against Farmers Insurance Exchange (Farmers), his former employer, pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. §§ 621-634 (West 1998), and the Missouri Human Rights Act (MHRA), Mo. Ann. Stat. § 213.055 (Vernon 1994). Farmers appeals from final judgments entered in the District Court for the Western District of Missouri. A jury awarded Denesha compensatory and liquidated damages under the ADEA and punitive damages under the MHRA. Upon post-trial motions the court granted Denesha farther equitable relief in the form of attorneys fees and front pay and granted Farmers’ motion for judgment as a matter of law with respect to punitive damages. Farmers appeals from denial of its motions for judgment as a matter of law or in the alternative a new trial on the issues of liability and willfulness under the ADEA, the award of front pay and liquidated damages, and the award of attorneys fees and costs. Denesha cross-appeals on the question of punitive damages and the amount of the front pay award. We affirm in part and reverse in part. I. BACKGROUND “We recite the facts in the light most favorable to the jury verdict and the district court’s findings.” Newhouse v. McCormick & Co., Inc., 110 F.3d 635, 637 (8th Cir.1997). In October of 1992, Charles Denesha was 55 years old and had been employed by Farmers as a Claims Representative (CR) for seventeen years. Denesha began his career with Farmers in 1975 as an Office Claims Representative (“OCR”), an entry-level office job handling small property claims over the telephone. In 1979, Denesha became a Field Claims Representative (“FOR”) handling bodily-injury claims. In November of 1992, the Grandview Branch Claims Office (“BCO”), Denesha’s place of work from 1975, merged with the Kansas City BCO. Prior to the merger, Denesha had never been denied a raise or formally disciplined. In early December 1992, John White, the Branch Claims Manager for the Kansas City BCO, altered the salary review completed by Denesha’s former supervisor, Julie Clark. White went beyond the review period in question"
},
{
"docid": "15062775",
"title": "",
"text": "motion to mold the verdict (doc. no. 117); defendant’s response thereto (doe. no. 122); defendant’s memorandum of law in opposition to plaintiffs motion to mold the verdict (doc. no. 126); plaintiffs reply to defendant’s response to plaintiffs motion to mold the verdict (doe. no. 128); and for the reasons stated in the Court’s Memorandum of July 22, 1998, it is hereby ORDERED as follows: 1. As to docket number 118, petition by plaintiff for attorney’s fees and costs, the motion is GRANTED IN PART AND DENIED IN PART as follows: plaintiffs coun sel shall be awarded $313,125.70 in attorney’s fees and $26,738.84 in costs; 2. As to docket number 132, defendant’s motion for leave to file a surreply memorandum in the attached form, the motion is GRANTED; 3. As to docket number 133, plaintiffs motion to supplement plaintiffs petition for attorney’s fees and costs, the motion is GRANTED; 4. As to docket number 137, plaintiffs motion for leave to file a reply to defendant’s surreply memorandum in support of plaintiffs motion for attorney’s fees and costs, the motion is GRANTED; 5. As to docket number 117, plaintiffs motion to mold the verdict, the motion is GRANTED IN PART AND DENIED IN PART as follows: (a) the judgment is amended to include $10,551.57 in pre-judgment interest, (b) pursuant to 28 U.S.C. § 1961, the plaintiff shall receive post-judgment interest at a rate of 5.49% from November 3, 1997 on the entire judgment; (c) plaintiffs request that the verdict be molded to compensate for “negative tax consequences” is denied. AND IT IS SO ORDERED. . Mr. McAleese slated that \"[t]he issues in the Becker v. ARCO case were difficult to litigate, in my opinion, because of the numerous subjective defenses asserted by ARCO Chemical, and .again because of the numerous witnesses that testified at trial, and the large volume of documents involved.” (Pet. Mem. at Ex.C). Mr. McAleese does not state that he reviewed the file, nor does he identify which of the defenses offered by the defendant were particularly challenging or difficult to defend against. The other affiants, Ms. Ballard and"
},
{
"docid": "23424253",
"title": "",
"text": "Becker’s testimony in this regard as “the Seaver evidence.” ARCO contends that the admission of this evidence violated Fed.R.Evid. (hereinafter cited in the text as “Rule”) 404(b), 403, and 608(b), and that the district court’s error in admitting the testimony was not harmless. For the reasons that follow, we hold that the district court erred by admitting the Seaver evidence pursuant to Rule 404(b). We also conclude that Rule 608(b) clearly does not provide a basis for introducing Becker’s testimony on this point. Moreover, based on the record presented, we cannot say that it is highly probable that the district court’s admission of this evidence did not affect ARCO’s substantial rights. See McQueeney v. Wilmington Trust Co., 779 F.2d 916, 924, 927-28 (3d Cir.1985). Hence, the district court’s erroneous evidentiary ruling requires us to reverse its order of June 30, 1998, insofar as it denied ARCO’s motion for a new trial, and remand the matter to the district court with directions to grant a new trial on the age discrimination claims as to all issues. See id. at 931. Because we are remanding the matter for a new trial in its entirety, we will dismiss Becker’s cross-appeal as moot, and we will not address ARCO’s additional arguments presented in its appeal. See J & R Ice Cream Corp. v. California Smoothie Licensing Corp., 31 F.3d 1259, 1266 (3d Cir.1994). II. JURISDICTION and STANDARD OF REVIEW The district court exercised subject matter jurisdiction over Becker’s ADEA claim pursuant to 28 U.S.C. § 1331, and had supplemental jurisdiction over the PHRA claim pursuant to 28 U.S.C. § 1367. We exercise appellate jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. In Bhaya v. Westinghouse Electric Corp., 922 F.2d 184 (3d Cir.1990), we explained that when reviewing the district court’s decision to grant or deny a motion for a new trial, we must give substantial deference to the trial judge’s decision “ ‘who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart.’ ” Id. at 187 (quoting Cone v. West Virginia Pulp"
},
{
"docid": "15096330",
"title": "",
"text": "Court concludes that the jury’s award of $170,000 in compensatory damages is neither excessive nor clearly unsupported. With respect to the jury’s back pay and front pay awards, both were supported by the testimony of plaintiff’s expert. Mr. Verzilli, an economist presented by Mr. Becker, determined that, taking a reduction to present value into account, Mr. Becker’s back pay damages to be $186,095 and Mr. Becker’s future loss of earnings to be between $435,051 and $587,567. (Tr. 10/24/97 at 135-40; see also Pl.’s Ex. 329 a,b,c). The jury’s award of $186,095 in back pay corresponds exactly to the expert opinion, while the jury’s award of $380,000 in front pay actually falls below the range presented by plaintiff’s expert. Therefore, the Court does not find the jury’s award to be excessive, unsupported or shocking to the conscience. ORDER AND NOW, this 29th day of June, 1998, upon consideration of defendant ARCO’s motion for judgment as a matter of law, or in the alternative for a new trial, or in the alternative for remittitur (doc. no. 115), plaintiffs’ response thereto(doc. no. 121), and defendant’s memorandum in support of its motion (doc. no 124), plaintiffs response thereto (doc. no. 127), motion by defendant to file a reply brief and the attached reply (doe. no 131), motion by plaintiff to file a surreply and the attached surreply (135), motion by defendant to file a supplemental memorandum and the attached memorandum (doc. no. 139), and plaintiffs motion in opposition to defendant’s motion to file a supplemental memorandum and the attached memorandum (doc. no. 140), and for the reasons stated in the Memorandum accompanying this Order, it is hereby ORDERED as follows: 1. As to docket number 115, defendant’s motion for judgment as a matter of law, or in the alternative for a new trial, or in the alternative for remittitur, the motion is DENIED, 2. As to docket number 131, defendant’s motion for leave to file a reply memorandum in the attached form, the motion is GRANTED; 3. As to docket number 135, plaintiffs motion for leave to file a surreply to defendant’s motion for"
},
{
"docid": "8684785",
"title": "",
"text": "MEMORANDUM AND ORDER SCHILLER, District Judge. I. INTRODUCTION After a jury trial before this Court in the above-captioned matter, judgment was entered in favor of Plaintiff on July 22, 2002 as to Plaintiffs claims under the Age Discrimination in Employment Act (“ADEA”) and the Pennsylvania Human Relations Act (“PHRA”). In accordance with special interrogatories to the jury, this Court awarded Plaintiff Robert Jordan $260,000.00 in lost earnings and benefits accruing up to the time of trial and $90,000.00 in compensatory damages. Now before the Court is Plaintiffs petition for counsel fees and costs, Plaintiffs motion to mold the verdict to include prejudgment interest and damages resulting from tax consequences, and Defendant’s motion to amend judgment and for remittitur. For the reasons that follow, I grant in part and deny in part Plaintiffs attorney fee petition; grant in part and deny in part Plaintiffs motion to mold the verdict to include prejudgment interest and damages from tax consequences; and grant in part and deny in part Defendant’s motion to amend judgment and for remittitur. II. PLAINTIFF’S PETITION FOR COUNSEL FEES AND COSTS Petitioner seeks an award of $195,299.25 in fees and $19,147.80 in costs, representing the work of Ronald Surkin, Brian Kirby, other assisting attorneys, and a paralegal. In addition, Plaintiff seeks a supplemental award of $7,571.00 in fees and $2,292.22 in costs incurred since the initial filing of his petition. Under the ADEA and the PHRA, a “prevailing party” is entitled to an award of reasonable attorney’s fees. See Blum v. Witco Chem. Corp., 829 F.2d 367, 377 (3d Cir.1987); Becker v. ARCO Chem. Co., 15 F.Supp.2d 621, 626 (1998); see also Rego v. Arc Water Treatment, Civ. A. No. 94-3734, 1998 WL 334489, *1, 1998 U.S. Dist. LEXIS 9635, at *6 (E.D.Pa. June 29, 1998), aff'd, 181 F.3d 396 (3d Cir.1999); 43 P.S. § 962(c)(4)(c.2)(2002). The party seeking attorney’s fees has the burden to prove that the request is reasonable. See Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990). A reasonable attorney’s fee can be calculated by multiplying the number of hours reasonably expended on the litigation by"
},
{
"docid": "22942404",
"title": "",
"text": "“recalling or rehiring her” were not the true reasons. It found that Stratton had proven that age was a determinative factor in defendants’ decision to terminate her employment or not to recall or rehire her. It found that Stratton had proven that defendants’ actions were motivated at least in part by a desire to retaliate against her for filing an age discrimination claim against them. The jury awarded $500,000 in back pay and found that defendants’ actions were wilful. Post-trial motions followed. Defendants moved pursuant to Fed.R.Civ.P. 59(a) for a new trial or remittitur and.pursuant to Fed. R.Civ.P. 50(b) for judgment as a matter of law dismissing the complaint. Stratton cross-moved for an award of front pay and the restoration of her full pension and social security benefits. In an Opinion and Order dated March 12, 1996, Judge Scheindlin denied defendants’ motions, conditioning the denial of the motion for a new trial on the amount of damages on Stratton’s acceptance of a reduction in the back pay award from $500,000 to $373,886.28, which would be doubled pursuant to the liquidated damages provision of the ADEA, 29 U.S.C. § 626(b), because of the jury’s finding of wilfulness. Judge Scheindlin also granted Stratton’s cross-motion and awarded $378,000 in front pay and other benefits. Stratton v. Department for the Aging, 922 F.Supp. 857 (S.D.N.Y.1996). Stratton then moved for attorneys’ fees and costs and prejudgment interest. In an Opinion and Order filed June 25, 1996, Judge Scheindlin granted the motion and awarded attorneys’ fees and costs in .the amount of $337,760.03 and prejudgment interest in the amount of $63,880.75. Stratton v. Department for the Aging, No. 91 Civ. 6623, 1996 WL 352909 (S.D.N.Y. June 25, 1996). Stratton accepted the remittitur, and final judgment was entered on July 23, 1996, in the total amount of $1,559,359.01, consisting of $747,772.46 (the back pay award of $373,-886.23 doubled by virtue of the jury’s finding of wilfulness), $378,000 in front pay and other benefits, $337,760.03 in attorneys’ fees and costs, $63,880.75 in prejudgment interest awarded by Judge Scheindlin on June 24, 1996, and additional prejudgment interest. This appeal"
},
{
"docid": "23424339",
"title": "",
"text": "that verdict. Accord ingly, we are left with no alternative but to reverse the district court’s denial of ARCO’s post-trial motion insofar as it requested a new trial on all issues, and remand the matter to the district court with directions to grant a new trial on the federal and state age discrimination claims. V. CONCLUSION We conclude with the following observation. The proceedings in this matter and in Morley as well as other cases we have cited demonstrate that great care must be taken when a party offers Rule 404(b) evidence. The rule is not easy to apply and its misapplication may lead to a significant waste of the parties’ and the court’s time. Indeed, in this case the result might have been the same without the Seaver evidence. The important point is that a party cannot justify admission of Rule 404(b) evidence merely by reciting in eonclusory terms that the evidence is admissible under that rule. For the foregoing reasons, we are constrained to hold that the district court erred in admitting the Seaver evidence, and that we cannot say that ARCO’s substantial rights were not affected. Accordingly, we will reverse the district court’s order of June 30, 1998, insofar as it denied ARCO’s motion for a new trial under Rule 59(a), and will remand the matter to the district court with directions to grant a new trial on all issues pertaining to the age discrimination claims. Moreover, inasmuch as we have determined that a new trial in its entirety is warranted, we dismiss Becker’s cross-appeal as moot. . On August 31, 1998, the district court entered an order denying Becker’s motion for reconsideration of its July 23, 1998 order. While Becker’s notice of appeal recites that it is from the orders of July 23, 1998, and August 31, 1998, effectively the cross-appeal is from the July 23, 1998 order on the fee petition and motion to \"mold\" the verdict. . The total judgment represented the following amounts: (1) $186,095.00 in back pay; (2) $380,000.00 in front pay; and (3) $170,-000.00 in compensatory damages. . At the outset,"
},
{
"docid": "15062729",
"title": "",
"text": "MEMORANDUM EDUARDO C. ROBRENO, District Judge. This is an age discrimination case. After an eleven-day trial, the jury awarded plaintiff $736,000 in damages. Presently before the Court are plaintiff counsel’s petition for $562,421.25 in attorney’s fees and $36,613.95 in costs, and plaintiff’s motion to mold the verdict to include post-trial interest, and pretrial interest on the back pay award, and to reflect tax consequences suffered by plaintiff. Defendant opposes the petition for attorney’s fees and costs as excessive, and objects to the Court molding the verdict. For the reasons which follow, the Court will grant counsel attorney’s fees in the reduced amount of $313,125.70, costs in the reduced amount of $26,738.84, and will mold the verdict to include pre-trial interest on the back pay award. The Court also grants the plaintiff post-trial interest on the entire verdict. I. BACKGROUND The plaintiff, William P. Becker (“Becker”) sued his former employer, ARCO, for age discrimination in connection with his discharge from employment. Specifically, Becker alleged in a three-count complaint that the conduct of ARCO employees violated the Age Discrimination in Employment Act (“ADEA”) and the Pennsylvania Human Relations Act (“PHRA”), and constituted intentional infliction of emotional distress. The Court granted summary judgment in favor of ARCO on the claim for intentional infliction of emotional distress. The remaining claims under the ADEA and the PHRA proceeded to trial. At the conclusion of an eleven-day jury trial, at which twenty-one witnesses testified, the jury returned a verdict in favor of plaintiff. Becker was awarded $186,095 in back pay damages, $380,000 in front pay damages, and $170,000 in compensatory damages. The jury declined to award punitive or liquidated damages. In accordance with the verdict, the Court entered judgment in favor of plaintiff in the amount of $736,095 on November 3,1998. Following the conclusion of trial, plaintiff’s counsel (“counsel”) filed a petition for $562,-421.25 in attorney’s fees and $36,613.95 in costs. The $562,421.25 in attorney’s fees is comprised of $434,500 in attorney’s fees related to litigation, a 20% fee enhancement amounting to $86,900, $24,996.25 in overtime, and $16,025 in fees relating to the preparation of the"
},
{
"docid": "15096292",
"title": "",
"text": "years of his employment with ARCO, the plaintiff received at least an acceptable rating on all his performance reviews from 1970 through 1992 and the only rating the plaintiff received below acceptable was in the performance review filed in the year plaintiff was discharged; (2) that the plaintiff received regular performance bonuses including one in the year he was discharged; (3) that ARCO did not consider customer service to be the most important qualification for his position as asserted by the defendant, but that instead, technical ability was the most important qualification. Furthermore, Becker presented certain statements made by ARCO employees as circumstantial evidence of discrimination. These statements included a comment allegedly made by Becker’s second-tier supervisor that a vice president of ARCO “wanted younger people in management,” and statements allegedly made by the plaintiffs immediate supervisor that he was taking plaintiff “off the fast track,” “knocking [Becker] down a notch” because “older guys are getting all the merit money.” In summary, the Court concludes that the evidence, when viewed in the light most favorable to plaintiff, supports the jury’s finding that ARCO intentionally discriminated against Becker based on his age. Thus, the record is not “critically deficient of that minimum quantum of evidence from which the jury might reasonably afford relief,” Dawson, 630 F.2d at 959, and the Court may not disturb the jury’s verdict on liability. 2. Damages The jury found that ARCO discriminated against Becker and awarded Becker $736,095 in damages. This was comprised of $186,095 in back pay damages, $380,000 in front pay damages, and $170,000 in compensatory damages. ARCO alleges that Becker is not entitled to recover $380,000 in front pay because he ceased mitigating his damages six months before trial, and because his earlier efforts to seek new employment were sporadic at best. It is true that a plaintiff has a duty to mitigate his damages. Ford Motor Company v. EEOC, 458 U.S. 219, 232, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982); Maxfield v. Sinclair International, 766 F.2d 788, 796 (3d Cir.1985). However, it is the defendant who bears the burden of proving by"
},
{
"docid": "23424268",
"title": "",
"text": "his complaint in the district court on November 15, 1995, alleging violations of the ADEA (count 1) and the PHRA (count 2), and asserting a state law claim for intentional infliction of emotional distress (count 3). The district court granted ARCO’s motion for summary judgment on the intentional infliction of emotional distress claim by order entered July 1, 1997, but denied its motion as to the state and federal age discrimination claims. App. at 602-06. The remaining counts proceeded to a singular trial on liability and damages. On November 3, 1997, the jury found that ARCO violated the ADEA and the PHRA by terminating plaintiffs employment, and awarded Becker $736,095.00 in damages. Subsequently, the parties filed post-trial motions, the dispositions of which are the basis for these appeals. First, ARCO filed a motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), or in the alternative for a new trial pursuant to Fed.R.Civ.P. 59(a), or in the alternative for a remittitur. The district court denied ARCO’s motion in its entirety by memorandum opinion and order entered June 30, 1998. See Becker I, 15 F.Supp.2d at 600. Second, Becker petitioned the district court for an award of $562,421.25 in attorney’s fees and $36,613.95 in costs, and filed a separate motion to “mold” the verdict to include post-trial interest on the front pay award and pre-trial interest on the back pay award, and to reflect adverse tax consequences he suffered by reason of receiving his back pay and front pay award in a lump sum. By memorandum opinion and order entered July 23, 1998, the district court granted in part and denied in part Becker’s petition for attorney’s fees and costs, and his motion to mold the verdict. See Becker II, 15 F.Supp.2d at 621. Then on August 31, 1998, the district court entered an order denying plaintiffs motion for reconsideration of the prior July 23,1998 order in Becker II. ARCO appeals from the district court’s order in Becker I, and Becker cross-appeals from the district court’s order in Becker II and its order denying reconsideration. Becker does not appeal"
},
{
"docid": "23424267",
"title": "",
"text": "his promotion to Becker’s position. Becker had hired and trained Smith, and was primarily responsible for his performance reviews. Appellee Becker’s Br. at 11; app. at 2876-77. According to Becker, Smith was a very accurate and good technician, but he lacked the level of Becker’s technical expertise and knowledge. Moreover, Becker also had indicated in Smith’s 1993 evaluation that he needed to develop further his interpersonal skills. Id. at 2877. ARCO offered to make Becker a lump sum payment “equal to 24 weeks of [Becker’s] base pay, minus applicable withhold-ings,” contingent on his signing a separation agreement requiring him, inter alia, to waive any future age discrimination claim against ARCO. Thus, ARCO offered Becker one week’s pay for every year he had worked for ARCO or its predecessor. ARCO also said that it would pay him “four weeks’ pay” and pay him for 30 days of unused vacation time. These payments were not contingent on Becker signing the release. Becker refused to sign the waiver, and subsequently filed this suit. B. Procedural History Becker filed his complaint in the district court on November 15, 1995, alleging violations of the ADEA (count 1) and the PHRA (count 2), and asserting a state law claim for intentional infliction of emotional distress (count 3). The district court granted ARCO’s motion for summary judgment on the intentional infliction of emotional distress claim by order entered July 1, 1997, but denied its motion as to the state and federal age discrimination claims. App. at 602-06. The remaining counts proceeded to a singular trial on liability and damages. On November 3, 1997, the jury found that ARCO violated the ADEA and the PHRA by terminating plaintiffs employment, and awarded Becker $736,095.00 in damages. Subsequently, the parties filed post-trial motions, the dispositions of which are the basis for these appeals. First, ARCO filed a motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), or in the alternative for a new trial pursuant to Fed.R.Civ.P. 59(a), or in the alternative for a remittitur. The district court denied ARCO’s motion in its entirety by memorandum opinion"
},
{
"docid": "23424341",
"title": "",
"text": "we note that ARCO has not challenged that aspect of the district court's opinion and order denying its motion for judgment as a matter of law pursuant to Fed. R.Civ.P. 50(b) based on the sufficiency of Becker's evidence of age discrimination. See Becker I, 15 F.Supp.2d at 606-09. Therefore, we will not consider whether ARCO is entitled to judgment as a matter of law on that basis. We also note that we have considered whether we could grant a partial new trial limited to the issue of ARCO’s liability for age discrimination, but it is apparent to us that the issues of liability and damages are so intertwined that a new trial in its entirety is warranted in the circumstances. See Vizzini v. Ford Motor Co., 569 F.2d 754, 760 (3d Cir. 1977) (discussing circumstances in which court may grant partial new trial) (quoting Gasoline Prods. Co. v. Champlin Ref. Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931)); 11 Charles Alan Wright, et al., Federal Practice and Procedure, § 2814, at 150 (2d ed. 1995) (\"It therefore now may be regarded as settled that if an error at trial requires a new trial on one issue, but this issue is separate from the other issues in the case and the error did not affect the determination of the other issues, the scope of the new trial may be limited to the single issue.”). . Throughout this opinion, we cite the Joint Appendix as “App. at_” Similarly we refer to the trial exhibits, which are bound and paginated separately, as \"TE at_\" Also, we refer to the parties’ briefs in the appeal from the denial of ARCO's post-trial motion as “Appellant ARCO’s Br. at _” and “Appellee Becker's Br. at_” . For example, during Becker’s cross-examination, ARCO's counsel elicited Becker’s interpretation of the significance of Ramey’s comments to him at the meeting on August 15, and what Ramey wanted Becker to do: Q. And your observations today, were that you were asked to lie, correct? A. Say that again? Q. Your observations today when you spoke"
},
{
"docid": "23424251",
"title": "",
"text": "OPINION OF THE COURT GREENBERG, Circuit Judge. I. INTRODUCTION This matter is before this court on an appeal from an order denying defendant ARCO Chemical Company’s (“ARCO”) motion for judgment as a matter of law, or in the alternative, for a new trial, or in the alternative, for a remittitur, entered on June 30, 1998, in this employment discrimination case following a jury verdict in favor of the plaintiff, William P. Becker (“Becker”). See Becker v. ARCO Chem. Co., 15 F.Supp.2d 600, 621 (E.D.Pa.1998) (“Becker I”). Becker cross-appeals from the district court’s order of July 23, 1998, which granted in part and denied in part his motion to “mold” the verdict to include post-trial interest on the front pay award and pre-trial interest on the back pay award, and to reflect adverse tax consequences Becker suffered by virtue of the lump sum damages award on his age discrimination claims. See Becker v. ARCO Chem. Co., 15 F.Supp.2d 621, 639-40 (E.D.Pa.1998) (“Becker II”). Becker also cross-appeals from that aspect of the district court’s July 23, 1998 order which granted in part and denied in part his petition for attorney’s fees and costs. Id. Plaintiff sued ARCO under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 ef seq., and the Pennsylvania Human Relations Act (“PHRA”), Pa. Stat. Ann., tit. 43, §§ 951 et seq. (West 1991), contending that ARCO discriminated against him on the basis of his age by terminating his employment with the company on March 4,1994. At the time of his discharge, Becker was 51 years old. After an 11-day trial which resulted in a verdict in Becker’s favor, the district court on November 4, 1997, entered a judgment of $736,095.00 for Becker on the verdict. While the appeal and cross-appeal raise several allegations of error, we only need address one issue — whether ARCO is entitled to a new trial under Fed.R.Civ.P. 59(a) based on the district court’s admission, over ARCO’s repeated objections, of Becker’s testimony pertaining to the “manner” in which ARCO allegedly earlier had terminated another employee, Linwood Seaver. For convenience, we refer to"
},
{
"docid": "6772637",
"title": "",
"text": "MEMORANDUM-DECISION and ORDER MUNSON, Senior District Judge. This matter was reassigned to the undersigned following the Hon. Rosemary S. Pooler’s 1998 appointment to the United States Court of Appeals for the Second Circuit. On September 30, 1998, following a roughly two week trial before this court, the presiding jury returned a mixed verdict finding plaintiffs employer breached his contract, but had not terminated him because of his age. The verdict led to several post-trial motions, which currently are before the court. Plaintiffs motions ask the court: (1) to set aside the jury’s verdict with respect to their finding no liability on his state and federal age discrimination claims; (2) to amend judgment to include prejudgment interest on the damages awarded on his breach of contract claim; and (3) to award plaintiff costs of the action, including reasonable attorney’s fees. Defendants oppose plaintiffs motions and cross-move for judgment as a matter of law on plaintiffs breach of contract claim. After careful consideration, the court denies plaintiffs motion to set aside the verdict; denies defendant’s motion for judgment as a matter of law; denies plaintiffs motion to award him costs and attorney’s fees; and grants plaintiffs motion for prejudgment interest. BACKGROUND The facts of this matter are set forth in Judge Pooler’s July 17, 1997 decision and only those germane to the instant motions will be repeated here. See Donovan v. Eastern Milk Producers Co-op. Ass’n. Inc., 971 F.Supp. 674 (N.D.N.Y.1997). Plaintiff, the erstwhile General Manager at Eastern, claimed defendants breached his employment contract and discharged him from in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., and New York Human Rights Law (“NYHRL”), N.Y.Exec.Law §§ 290 et seq. After hearing argument and considering the evidence presented at trial, the jury delivered a verdict of $40,-000 that found merit to the breach of contract claim only. Although the jury found plaintiff proved his age was a motivating factor in Eastern’s decision to fire him, it further found the company would have released him regardless of his age. Plaintiff contends the verdict as to his age"
},
{
"docid": "15062730",
"title": "",
"text": "Age Discrimination in Employment Act (“ADEA”) and the Pennsylvania Human Relations Act (“PHRA”), and constituted intentional infliction of emotional distress. The Court granted summary judgment in favor of ARCO on the claim for intentional infliction of emotional distress. The remaining claims under the ADEA and the PHRA proceeded to trial. At the conclusion of an eleven-day jury trial, at which twenty-one witnesses testified, the jury returned a verdict in favor of plaintiff. Becker was awarded $186,095 in back pay damages, $380,000 in front pay damages, and $170,000 in compensatory damages. The jury declined to award punitive or liquidated damages. In accordance with the verdict, the Court entered judgment in favor of plaintiff in the amount of $736,095 on November 3,1998. Following the conclusion of trial, plaintiff’s counsel (“counsel”) filed a petition for $562,-421.25 in attorney’s fees and $36,613.95 in costs. The $562,421.25 in attorney’s fees is comprised of $434,500 in attorney’s fees related to litigation, a 20% fee enhancement amounting to $86,900, $24,996.25 in overtime, and $16,025 in fees relating to the preparation of the fee petition. II. PETITION FOR ATTORNEY’S FEES A. The ADEA A plaintiff who has prevailed on the merits of his ADEA claim is entitled to an award of attorney’s fees pursuant to 29 U.S.C. § 626(b). See Blum v. Witco Chem. Corp., 829 F.2d 367, 377 (3d Cir.1987). “The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b) (1965 & Supp.1998) (as incorporated by 29 U.S.C. § 626(b)). “The ADEA prohibits age discrimination in employment against any person over age forty. Because the prohibition against age discrimination contained in the ADEA is similar in text, tone, and purpose to that contained in Title VII, courts routinely look to law developed under Title VII to guide an inquiry under the ADEA.” Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 330 (3d Cir.1995) (citations omitted). The Third Circuit has noted that “[sjince [42 U.S.C.] § 1988 is similar"
},
{
"docid": "23424252",
"title": "",
"text": "order which granted in part and denied in part his petition for attorney’s fees and costs. Id. Plaintiff sued ARCO under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 ef seq., and the Pennsylvania Human Relations Act (“PHRA”), Pa. Stat. Ann., tit. 43, §§ 951 et seq. (West 1991), contending that ARCO discriminated against him on the basis of his age by terminating his employment with the company on March 4,1994. At the time of his discharge, Becker was 51 years old. After an 11-day trial which resulted in a verdict in Becker’s favor, the district court on November 4, 1997, entered a judgment of $736,095.00 for Becker on the verdict. While the appeal and cross-appeal raise several allegations of error, we only need address one issue — whether ARCO is entitled to a new trial under Fed.R.Civ.P. 59(a) based on the district court’s admission, over ARCO’s repeated objections, of Becker’s testimony pertaining to the “manner” in which ARCO allegedly earlier had terminated another employee, Linwood Seaver. For convenience, we refer to Becker’s testimony in this regard as “the Seaver evidence.” ARCO contends that the admission of this evidence violated Fed.R.Evid. (hereinafter cited in the text as “Rule”) 404(b), 403, and 608(b), and that the district court’s error in admitting the testimony was not harmless. For the reasons that follow, we hold that the district court erred by admitting the Seaver evidence pursuant to Rule 404(b). We also conclude that Rule 608(b) clearly does not provide a basis for introducing Becker’s testimony on this point. Moreover, based on the record presented, we cannot say that it is highly probable that the district court’s admission of this evidence did not affect ARCO’s substantial rights. See McQueeney v. Wilmington Trust Co., 779 F.2d 916, 924, 927-28 (3d Cir.1985). Hence, the district court’s erroneous evidentiary ruling requires us to reverse its order of June 30, 1998, insofar as it denied ARCO’s motion for a new trial, and remand the matter to the district court with directions to grant a new trial on the age discrimination claims as to all issues."
},
{
"docid": "23424340",
"title": "",
"text": "Seaver evidence, and that we cannot say that ARCO’s substantial rights were not affected. Accordingly, we will reverse the district court’s order of June 30, 1998, insofar as it denied ARCO’s motion for a new trial under Rule 59(a), and will remand the matter to the district court with directions to grant a new trial on all issues pertaining to the age discrimination claims. Moreover, inasmuch as we have determined that a new trial in its entirety is warranted, we dismiss Becker’s cross-appeal as moot. . On August 31, 1998, the district court entered an order denying Becker’s motion for reconsideration of its July 23, 1998 order. While Becker’s notice of appeal recites that it is from the orders of July 23, 1998, and August 31, 1998, effectively the cross-appeal is from the July 23, 1998 order on the fee petition and motion to \"mold\" the verdict. . The total judgment represented the following amounts: (1) $186,095.00 in back pay; (2) $380,000.00 in front pay; and (3) $170,-000.00 in compensatory damages. . At the outset, we note that ARCO has not challenged that aspect of the district court's opinion and order denying its motion for judgment as a matter of law pursuant to Fed. R.Civ.P. 50(b) based on the sufficiency of Becker's evidence of age discrimination. See Becker I, 15 F.Supp.2d at 606-09. Therefore, we will not consider whether ARCO is entitled to judgment as a matter of law on that basis. We also note that we have considered whether we could grant a partial new trial limited to the issue of ARCO’s liability for age discrimination, but it is apparent to us that the issues of liability and damages are so intertwined that a new trial in its entirety is warranted in the circumstances. See Vizzini v. Ford Motor Co., 569 F.2d 754, 760 (3d Cir. 1977) (discussing circumstances in which court may grant partial new trial) (quoting Gasoline Prods. Co. v. Champlin Ref. Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931)); 11 Charles Alan Wright, et al., Federal Practice and Procedure, § 2814,"
}
] |
498943 | shared loan, an undertaking by one financial institution, usually called a ‘lead’, to divide a large loan which it has or will put on its books into shares which it then offers for sale to other ‘participant’ financial institutions. Participation agreements are simultaneously an assignment of an interest in an intangible right, a contract that prescribes duties of servicing the loan, and a document that creates an agency.” The court found broad support for the conclusion that “the rights of the participant bank flow not from the participation relationship itself, but from the express terms of the specific agreement.” WaKeeney at 790, 758 P.2d 236, citing Hibernia National Bank v. Federal Deposit Insurance Corporation, 733 F.2d 1403, 1408 (10th Cir.1984) (citing REDACTED Northern Trust Company v. Federal Deposit Insurance Corporation, 619 F.Supp. 1340, 1341 (W.D.Okla.1985); Clinton Federal Savings and Loan v. Iowa-Des Moines National, 391 N.W.2d 712, 716 (Iowa App.1986)). The court concluded that parties to a participation agreement may contract to whatever terms they wish. Any such contract will generally be enforced as to its terms. WaKeeney at 790, 758 P.2d 236. Looking to the terms of this particular participation agreement, the section entitled, “Participant Commitment” stated: Participant’s obligation to Fidelcor [CIT’s predecessor] to make contributions (i) in an amount equal to the then outstanding principal amount of loans to Borrower under the Demand Note in the principal amount of $1,500,000 upon Fidelcor’s demand to the Participant after Fidelcor has declared | [
{
"docid": "3068452",
"title": "",
"text": "the lead bank continued in possession of the note. See MacDonald, Loan Participations As Enforceable Property Rights in Bankruptcy—A Reply to the Trustee’s Attack, 53 Am.Bankr.L.J. 35, 49 (1979); Simpson, Loan Participations: Pitfalls for Participants, 31 Bus.Law. 1977, 1982-83 (1976) (“Regardless of whether the transaction between the lead and its participant is intended as a sale or a financing, the lead will usually continue in possession of the underlying loan documents, including any promissory note evidencing the third-party obligation, and will continue to service the loan .... ”); Stahl, Loan Participations: Lead Insolvency and Participants’ Rights (Part I), 94 Banking L.J. 882, 888 (1977) (“the case law has treated a participation in an unsecured note as the equivalent of the sale of an entire interest in an instrument and has recognized that the participant has an ownership interest”). The lead-participant relationship has been characterized in a variety of ways. For instance, Hutchins, supra note 6, at 458-74 describes six possible relationships: debtor-creditor, assignment, tenancy in common, joint venture, agency, and trust. Under the terms of the participation agreement in this case, however, the participant is an assignee of a percentage interest of the loan and the lead bank is the agent for servicing the entire loan. See, MacDonald, supra, at 39 n.12 (“in bank and savings and loan liquidations run by the FDIC and FSL1C, sales of participations are typically honored as the transfer of an ownership interest in the underlying loan”). Several cases have also recognized this characterization of the lead-participant relationship. See FDIC v. Mademoiselle of Cal., 379 F.2d 660, 665 (9th Cir. 1967) (if the debtor had made a specific payment on the note to the insolvent lead rather than setting off its deposit in an account with the lead against the note, then this case would come within the rule that assignment of 80% of the note to a participant would pass legal title in 80% of the proceeds to the participant); Delatour v. Prudence Realization Corp., 167 F.2d 621, 624 (2d Cir. 1948) (certificate holders were “owners of the mortgage” and after default by the"
}
] | [
{
"docid": "8052892",
"title": "",
"text": "the defendant or the consequences of those activities have a substantial enough connection with the forum state to make the exercise of jurisdiction reasonable. Markby v. St. Anthony Hospital Systems, 647 P.2d 1068, 1073 (Wyo.1982). “[I]f the cause of action did not arise from the activities of the defendants in Wyoming, they are not amenable to service under the [Wyoming] long arm statute.” Cozzens v. Piper Aircraft Corp., 514 P.2d 1375, 1379 (Wyo.1973). Appellants first attempt to establish appellees’ minimum contacts with Wyoming through appellees’ involvement in the loan participation agreements. Appellants contend that, through these participation agreements, the appellees acquired an interest in the underlying mortgages, and thus an interest in Wyoming real property. However, as the district court notes, the participation agreements were executed in North Dakota and South Dakota, and gave the appellees no more than a chose of action as to WPSC. The agreements create no rights between appellants and appellees. Hibernia Nat. Bank v. Federal Deposit Ins. Corp., 733 F.2d 1403, 1407 (10th Cir. 1984) (the “ ‘participants’ [appellee S & L’s] can look solely to the lead [WPSC] for satisfaction of their claims because they are not themselves creditors of the borrowers and cannot assert creditor claims against the borrowers”). Thus, appellees acquire no interest in the mortgage loans between appellants and WPSC, or the property underlying such loans. Id. at 1408. Our review of the participation agreements confirms the correctness: of the district court’s conclusion that the agreements give appellees only an interest in the loans, and a chose in action as to WPSC. The agreements expressly provide that “the Seller [WPSC], thereafter will continue to hold legal title to such loan as trustee” for the participating S & L’s. Rec. vol. I at 239, vol. I at 78. Thus, the acquisition of the participation interest by appellees does not constitute a minimum contact sufficient to establish personal jurisdiction over the ap-pellees in Wyoming. Appellants also contend that, through their participation in the loans, appellees placed money into the stream of commerce that had foreseeable consequences in Wyoming, and are thus subject to"
},
{
"docid": "19773929",
"title": "",
"text": "participation agreements is First Bank of WaKeeney v. Peoples State Bank, 12 Kan. App.2d 788, 758 P.2d 236 (1988). The court there held that “[t]he rights of the participant bank flow not from the participation relationship itself but from the express terms of the specific agreement.” Id. at 238. The agreement does not give rise to a fiduciary relationship, but rather is an “arms-length contract.” See id. at 240 (quoting In re Colocotronis Tanker Sec. Litig., 449 F.Supp. 828, 833 (S.D.N.Y. 1978)); see also Hibernia Nat’l Bank v. FDIC, 733 F.2d 1403, 1408 (10th Cir.1984); N. Trust Co. v. FDIC, 619 F.Supp. 1340, 1344-45 (W.D.Okla.1985). The Minnesota Court of Appeals cited the First Bank decision with approval when addressing the construction of a participation agreement. See Olson v. Citizens State Bank of Montgomery, No. C6-93-455, 1993 WL 366699, *1, *2 n. 1, 1993 MinnApp. LEXIS 949, *4, *7 n. 1 (Minn.Ct.App. Sept.21, 1993) (unpublished). An unpublished decision of the Minnesota Court of Appeals, however, is not precedential. Minn.Stat. Ann. § 480A.08, subd. 3(c) (West 2002). Although the Minnesota Supreme Court has not directly addressed the nature of a participating bank’s rights under a participation agreement, in McIntosh II it described the participation as an “arm’s length” dealing and emphasized the participants’ duty to rely on their own independent evaluation of the loans. Id. at 548. The Court’s emphasis on the terms of the Participation Agreement convinces us that its view of these transactions is consistent with the commonly accepted understanding. As such, we predict that Minnesota law would hold Bremer to the marketplace standards of vigilance and independent inspection, and not grant it any protection beyond the express terms of the Participation Agreement. VIII. Turning to the district court’s decision in the Bremer action, we review its factual findings for clear error and its conclusions of law de novo. Universal Title Ins. Co. v. United States, 942 F.2d 1311, 1314 (8th Cir.1991); see Part II, supra. As discussed in Part II, above, we may set aside factual findings that are derived from erroneous legal assumptions. See id. The district court"
},
{
"docid": "10771072",
"title": "",
"text": "certificate “cannot be read to transfer the ownership of the loans.” 733 F.2d 1407-1408. (As Plaintiff emphasizes, Hibernia was an injunction suit entailing unique standards of proof; however, that distinction does not undercut the circuit’s substantive interpretation of the certificate’s terms.) The certificates evidencing Northern’s participations (which are set forth in the appendix to this Order) state, inter alia, that Penn Square would “hold for Northern’s account” its pro rata share of loan payments; that Penn Square retained sole discretion to modify or compromise the loans; and that Penn Square’s responsibility to Northern was limited to the “same care” that Penn exercised toward non-participated loans. The terms of Northern’s certificates gave it less input into Penn Square’s management of the participated loans and their collateral than the agreement construed by this Court in Seattle-First Nat’l Bk v. FDIC, 619 F.Supp. 1351 (W.D.Okl.1985), which arguably created property and trust interests. Even that possibility did not preclude offset, however, and the weaker terms of Northern’s certificates do not preclude offset here. The Court concludes that Northern Trust’s certificate did not create or transfer any ownership or property rights in the participated loan or the supporting collateral. Hibernia National Bank v. FDIC. Borrowers’ and Banks’ Right of Offset In FDIC v. Mademoiselle of California, 379 F.2d 660 (9th Cir.1967), Hibernia, and Chase Manhattan Bank v. FDIC, 554 F.Supp. 251 (W.D.Okla.1983), the Receiver’s offsets against participated loans found support in the borrowers’ equitable right to offset, Scott v. Armstrong, 146 U.S. 499, 13 S.Ct. 148, 36 L.Ed. 1059 (1892). Plaintiff posits that the purpose of the offsets allowed in those cases was preservation of the borrowers’ rights, whereas in the present case it is the Bank’s estate which benefits from the offset because the Bank retains the “real dollars” of the borrower's deposits and passes upstream the (allegedly discounted) receiver’s certificates. In Northern’s view, this is a usurpation of equities. Plaintiff is correct that a bank’s “lien”, or right to setoff, is conceptually distinct from the borrower’s right to setoff. Okl. Stat.Ann. tit. 42 § 32 (West, 1979) provides that: “A banker has a"
},
{
"docid": "11378900",
"title": "",
"text": "re Montross, 209 B.R. 943, 948 (9th Cir. BAP 1997). . Bonded Fin. Serv., Inc. v. European Amer. Bank, 838 F.2d 890, 893 (7th Cir.1988) (hereafter \"Bonded”). . Malloy v. Citizens Bank of Sapulpa (In re First Security Mortg. Co.), 33 F.3d 42, 43-44 (10th Cir.1994), quoting Bonded, 838 F.2d at 893. . Id. . Bonded, 838 F.2d at 894. . Bailey v. Big Sky Motors, Ltd. (In re Ogden), 314 F.3d 1190, 1202 (10th Cir.2002), quoting Rupp v. Markgraf, 95 F.3d 936, 941 (10th Cir.1996). . CLC Creditors’ Grantor Trust v. Howard Savings Bank (In re Commercial Loan Corp.), 396 B.R. 730, 742 (Bankr.N.D.Ill.2008). . Paloian v. LaSalle Bank, N.A., 619 F.3d 688, 691 (7th Cir.2010). . Patrick J. Ledwidge, Loan Participations Among Commercial Banks, 51 Tenn. L.Rev. 519, 520 (1984), quoting Black’s Law dictionary 1008 (5th Ed. 1997); see First Bank of Wakeeney v. Peoples State Bank, 12 Kan.App.2d 788, 790, 758 P.2d 236, 238 (1988) (\"A true participation is a shared loan, an undertaking by one financial institution, usually called the ‘lead’, to divide a large loan which it has or will put on its books into shares which it then offers for sale to other ‘participant’ financial institutions.”); Richard E. Weiner, Rights of a Participant Bank Against a Lead Bank in a Participation Loan Agreement, 104 Banking L.J. 529, 529 (1987) (defining loan participations as evidencing a joint venture by financial institutions designed to provide funds to \"large corporate clients in cases in which it would be impossible for any single financial institution to supply the necessary amount of funds”). . Hibernia Nat’l Bank v. F.D.I.C., 733 F.2d 1403, 1407 (10th Cir.1984). . First Bank of Wakeeney v. Peoples State Bank, 12 Kan.App.2d at 790, 758 P.2d at 238; Continental III. Nat’l Bank and Trust Co. of Chicago v. F.D.I.C. (In re Continental Resources Corp.), 799 F.2d 622, 624 (10th Cir.1986). . Weiner, 104 Banking L.J. at 529-530. . 12 C.F.R. § 32.2. . Weiner, 104 Banking L.J. at 530. . Id. at 530-531. . Bonded, 838 F.2d at 893 (emphasis added). . Security First Nat'l"
},
{
"docid": "19773928",
"title": "",
"text": "dismissed bank requests for judicial protection in participated loan transactions. Knight, supra, at 587-88. We have taken part in the trend against granting protection to participating banks. In Union National Bank of Little Rock v. Farmers Bank, we held that a loan participation is not a security under the Securities Exchange Act of 1934. 786 F.2d 881, 884-85 (8th Cir.1986). Even though the lead bank sold a 100% interest in the loan to the participating bank, under Arkansas law we decided that the lead bank had “no affirmative duty to disclose material information about the participation.” Id. at 887. We characterized the participation as “an arms-length transaction.” Union Nat’l Bank, 786 F.2d at 887. Our decision was an illustration of the principle that “participants are held to marketplace standards of vigilance and independent inspections. Therefore, banks should conduct independent and prudent evaluations of loans offered for participation.” Bank of Chicago v. Park Nat’l Bank, 266 Ill.App.3d 890, 203 Ill.Dec. 915, 640 N.E.2d 1288, 1297 (1994) (citations omitted). A leading case on the nature of loan participation agreements is First Bank of WaKeeney v. Peoples State Bank, 12 Kan. App.2d 788, 758 P.2d 236 (1988). The court there held that “[t]he rights of the participant bank flow not from the participation relationship itself but from the express terms of the specific agreement.” Id. at 238. The agreement does not give rise to a fiduciary relationship, but rather is an “arms-length contract.” See id. at 240 (quoting In re Colocotronis Tanker Sec. Litig., 449 F.Supp. 828, 833 (S.D.N.Y. 1978)); see also Hibernia Nat’l Bank v. FDIC, 733 F.2d 1403, 1408 (10th Cir.1984); N. Trust Co. v. FDIC, 619 F.Supp. 1340, 1344-45 (W.D.Okla.1985). The Minnesota Court of Appeals cited the First Bank decision with approval when addressing the construction of a participation agreement. See Olson v. Citizens State Bank of Montgomery, No. C6-93-455, 1993 WL 366699, *1, *2 n. 1, 1993 MinnApp. LEXIS 949, *4, *7 n. 1 (Minn.Ct.App. Sept.21, 1993) (unpublished). An unpublished decision of the Minnesota Court of Appeals, however, is not precedential. Minn.Stat. Ann. § 480A.08, subd. 3(c) (West 2002)."
},
{
"docid": "18692859",
"title": "",
"text": "Pledge Agreement. In any event, section 9.03 hardly gives a majority of the Group Members control over distributions to be made by Bankers Trust. (ii) Supporting the construction of these agreements as precluding a majority of Group Members from affecting a distribution to any one of them is the close analogue of the rights of a participating bank in a fund held by a lead or agent bank pursuant to a loan participation agreement. Participants in a loan participation agreement, even where there is but one single promissory note held by the lead bank in its own name, are recognized as holding partial ownership interests, in the amount of their ratable shares, of a fund received by the lead bank as agent for all the participants, including itself, in collecting the loan. See Hibernia Nat’l Bank v. FDIC, 733 F.2d 1403, 1408 (10th Cir.1984); FDIC v. Mademoiselle, 379 F.2d 660, 665 (9th Cir.1967); Mason & Dixon Lines, Inc. v. First Nat’l Bank, 86 B.R. 476, 478 (M.D.N.C.1988), aff'd, 883 F.2d 2 (4th Cir.1989) (a loan participation creates a partial ownership interest in the loan account to the participant); Seattle-First Nat’l Bank v. FDIC, 619 F.Supp. 1351, 1355 (W.D.Okla.1985); Deutscher v. Tennesco, Inc. (In re Southern Indus. Banking Corp.), 45 B.R. 97, 100 (Bankr.E.D.Tenn.1984) (loan participants had direct ownership interests that lead bank must honor); Stahl, Loan Participations: Lead Insolvency and Participants’ Rights, 94 Banking L.J. 882, 888 (1977). See also Franklin v. Commissioner of Internal Revenue Serv., 683 F.2d 125, 129 (5th Cir. 1982); Delatour v. Prudence Realization Corp., 167 F.2d 621, 624 (2d Cir.1948) (certificate holders were deemed the “real owners” of the mortgage and entitled to aliquot share); In re Prudence Co., 89 F.2d 689, 692 (2d Cir.1937). Cf. In re Fried Furniture Corp., 293 F.Supp. 92 (E.D.N.Y.1968) (participant has lien on proceeds from sale of debtor’s chattel), aff'd mem., 407 F.2d 360 (2d Cir.1969). The lead bank, by participating the loan, assigns, transfers, and conveys an undivided percentage ownership interest in the collateral for the participated loan to the participant. It holds the funds it collects by"
},
{
"docid": "18692858",
"title": "",
"text": "including Drexel. By expressly excusing Bankers Trust from obeying any instruction effectively depriving a Group Member of its pro rata share, the parties to the Pledge Agreement preserved, by failing to provide for control of the Group Members over distribution, the right of all Group Members to receive their pro rata shares. Thus, although the Collateral Agent is an agent for all the Group Members in collection and realization of the collateral, it is not an agent for purposes of distribution and the Banks are not principals in that respect. Section 9.03 of the Credit Agreement, relied upon by the Banks, is not to the contrary. That section provides, in pertinent part: no Bank shall have any right of action whatsoever against the Collateral Agent as a result of the Collateral Agent acting or refraining from acting hereunder or under any Pledge Agreement in accordance with the instructions of the Majority Banks.... The exemption, see Pledge Agreement § 7.2, of instructions violating that agreement effectively limits section 9.03 to acts that do not violate the Pledge Agreement. In any event, section 9.03 hardly gives a majority of the Group Members control over distributions to be made by Bankers Trust. (ii) Supporting the construction of these agreements as precluding a majority of Group Members from affecting a distribution to any one of them is the close analogue of the rights of a participating bank in a fund held by a lead or agent bank pursuant to a loan participation agreement. Participants in a loan participation agreement, even where there is but one single promissory note held by the lead bank in its own name, are recognized as holding partial ownership interests, in the amount of their ratable shares, of a fund received by the lead bank as agent for all the participants, including itself, in collecting the loan. See Hibernia Nat’l Bank v. FDIC, 733 F.2d 1403, 1408 (10th Cir.1984); FDIC v. Mademoiselle, 379 F.2d 660, 665 (9th Cir.1967); Mason & Dixon Lines, Inc. v. First Nat’l Bank, 86 B.R. 476, 478 (M.D.N.C.1988), aff'd, 883 F.2d 2 (4th Cir.1989) (a loan"
},
{
"docid": "11218066",
"title": "",
"text": "to foreclose,” the selling bank “clearly had the authority not to foreclose.” 604 F.2d at 469. While the form of the loan participation at issue in Carondelet differed from the syndication in this case, and while the selling bank in that case had express authority under the agreement to act on behalf of all the participating lenders, Car-ondelet, nevertheless, establishes that the discretionary power to declare a default must also include the power not to do so. Here [the defendant] wished to modify [the loan agreement] whereas [plaintiff] favored foreclosure. Nothing in the Participation Agreement gives [plaintiff] the power to insist on foreclosure in such a situation, and we are satisfied that the authority to decide what to do was vested in [the defendant]. 604 F.2d at 470; see also In Re Yale Express System, Inc., 245 F.Supp. 790, 792 (S.D.N.Y.1965); First Bank of WaKeeney v. Peoples State Bank, 12 Kan.App.2d 788, 758 P.2d 236 (1988); Clare v. New York Life Ins. Co., 178 A.D. 877, 166 N.Y.S. 95 (1st Dep’t 1917). NBNE asserts that while the agreements may not have expressly given it the right to insist on foreclosure, the explicit terms of the Credit Agreement and the Intercre-ditor Agreement must be interpreted as implying such a right. Courts have generally refused to rewrite agreements to provide minority lenders with any rights, such as the “implied” right sought here by NBNE, which are not expressly set forth in the agrebments. See, e.g., Hibernia National Bank v. F.D.I.C., 733 F.2d 1403, 1408 (10th Cir.1984); Colorado State Bank of Walsh v. F.D.I.C., 671 F.Supp. 706, 707 (D.Colo.1987) (loan participation purchaser’s claim against selling bank based on “implied duty to collect” on loan dismissed where claim was “contrary to the plain language of the written agreement between the banks”). Nor is there any basis for reading fiduciary or other duties into agreements “among sophisticated lending institutions.” First Citizens Federal Savings and Loan Association v. Worthen Bank and Trust Company, N.A., 919 F.2d 510, 514 (9th Cir.1990). See also Northern Trust Company v. F.D.I.C., 619 F.Supp. 1340 (W.D.Okla.1985). Indeed, to the extent that"
},
{
"docid": "11315562",
"title": "",
"text": "lead lender, the attractions are many: The lead [lender] receives immediate repayment of a portion of the loan from the participants, and is thereby able to make additional loans to either the same or to new borrowers. The lead [lender] also earns income in the form of loan origination fees and loan servicing charges. At times, the participation device permits the lead institution to accommodate consumer credit demands without exceeding its legal lending limit. The loan participation is appealing because it allows a lending institution to share the lending risk. W.H. Knight, Jr., Loan Participation Agreements: Catching Up with Contract Law, 1987 Colum. Bus. L.Rev. 587, 589 (1987). By entering into participation agreements, then, the lender obtains the benefit of being able “to make a loan which is greater than its lending authority.” First Bank of WaKeeney, 758 P.2d at 238. The participant, on the other hand, “obtains the benefits of the lender’s security interest and priority of payment.” Natwest USA, 858 F.Supp. at 408 (emphasis added). In In re Coronet Capital Co., 142 B.R. 78 (Bankr.S.D.N.Y.1992), the court devised a four-part definition of a “true” participation agreement: (1) money is advanced by a participant to a lead lender; (2) the participant’s right to repayment only arises when the lead lender is paid; (3) only the lead lender can seek legal recourse against the borrower; and (4) the document is evidence of the parties’ true intentions. Id. at 82; see also In re Sack-man Mortgage Corp., 158 B.R. 926, 933 (Bankr.S.D.N.Y.1993) (applying Coronet factors); In re Yale Express Sys., Inc., 245 F.Supp. 790, 792 (S.D.N.Y.1965) (first articulating factors adopted as four-part definition in Coronet). We believe that this definition accurately describes the factors that must be considered in order to determine if the parties have, in fact, entered into a participation agreement or another type of transaction simply labeled a participation agreement. The defendants argue that the characteristics of their five participation agreements meet this definition. Bayer disputes this, asserting that the bankruptcy court erred in granting summary judgment in favor of defendants since genuine issues of material fact exist"
},
{
"docid": "18692911",
"title": "",
"text": "debate. Rather, the dispute concerns whether a participant also receives an ownership or trust beneficiary interest in the loan itself enabling it to share in a repayment of the loan that is not the result of collection proceeds, but is occasioned by the borrower's setoff of amounts owed under the loan against credits with the lead bank. Compare Hibernia and Mademoiselle (setoff of deposit held mere shifting of credits within lead bank and did not create a fund for participants) with Anderson, Loan Participations and the Borrower’s Bankruptcy, 64 Am.Bankr.L.J. 39, 51 (1990) and MacDonald, Loan Participations as Enforceable Property Rights in Bankruptcy — Reply to the Trustee’s Attack, 53 Am.Bankr.L.J. 35, 40-41 (1979) (participant has ownership or trust interest in loan, not just collections). . The Banks, while denying a general fiduciary duty to Drexel, Final Brief, pp. 7-8, assert that the Lenders have a fiduciary obligation to distribute to Drexel its pro rata share of collateral proceeds. Banks’ Supp.Br., p. 14 n. 8. The Banks thus apparently recognize that Drexel, as Group Member, has either a direct ownership or a beneficial interest in its ratable share of the proceeds. Section 9.01 of the Credit Agreement states that: ”[t]he Collateral Agent shall not have by reason of this Agreement or any Pledge Agreement a fiduciary relationship in respect of the Borrower or any Bank or any other Person.” The Banks do not cite this provision, presumably for the reason that failure to create an express trust does not prevent a court from imposing the remedy of a constructive trust. United States v. Marx, 844 F.2d 1303, 1308 (7th Cir.1988) (a constructive trust is a remedial device which arises by operation of law to prevent unjust enrichment); Rosenberg v. Collins, 624 F.2d 659, 663 (5th Cir.1980) (an express trust requires intention to create it, whereas a constructive trust may be created regardless of the intent of the parties where equity and justice demand); Bell v. Straight, Inc., 707 F.Supp. 325, 328 (S.D.Ohio 1989) (constructive trust may be imposed by court regardless of intent of parties to create express trust); United"
},
{
"docid": "11218065",
"title": "",
"text": "agent may act in certain circumstances in accordance with the directions of the majority lenders, that is, the holders of more than 50% of the unpaid debt under the Agreement. The Senior Credit Agreement contains a similar provision. For example, the Senior Credit Agreement provides that a majority of the lenders may require the agent to accelerate the loan upon specified events of default. Defendants TD Bank, Provident and Prudential together constitute majority lenders under both the Senior Credit Agreement and the Intercreditor Agreement.... Complaint ¶ 14 (emphasis added). Here, a majority of the Lenders have not directed or required acceleration or foreclosure. The discretionary language of the operative documents authorizes them to refrain from doing so. In Carondelet Sav. & Loan Assn. v. Citizens Sav. & Loan Assn., 604 F.2d 464 (7th Cir.1979), a bank that had purchased a participation in a loan alleged that the selling bank had improperly refused to foreclose upon the borrower’s default. The court held that where the participation agreement “specifically granted the [selling bank] authority to determine when to foreclose,” the selling bank “clearly had the authority not to foreclose.” 604 F.2d at 469. While the form of the loan participation at issue in Carondelet differed from the syndication in this case, and while the selling bank in that case had express authority under the agreement to act on behalf of all the participating lenders, Car-ondelet, nevertheless, establishes that the discretionary power to declare a default must also include the power not to do so. Here [the defendant] wished to modify [the loan agreement] whereas [plaintiff] favored foreclosure. Nothing in the Participation Agreement gives [plaintiff] the power to insist on foreclosure in such a situation, and we are satisfied that the authority to decide what to do was vested in [the defendant]. 604 F.2d at 470; see also In Re Yale Express System, Inc., 245 F.Supp. 790, 792 (S.D.N.Y.1965); First Bank of WaKeeney v. Peoples State Bank, 12 Kan.App.2d 788, 758 P.2d 236 (1988); Clare v. New York Life Ins. Co., 178 A.D. 877, 166 N.Y.S. 95 (1st Dep’t 1917). NBNE asserts that"
},
{
"docid": "11315560",
"title": "",
"text": "assets that was filed after the 1988 loan guarantee that Bayer made to Mellon Bank. The defendants argue that, through their participation agreements, they are effectively in line with CIT and, therefore, ahead of Bayer. Bayer relies upon four legal theories to support its assertions that the defendants’ claims should be subordinated to Bayer’s claim. We will address each of these arguments in turn. A. Alleged Invalidity of the Participation Agreements Bayer contends that the defendants did not have “true” participations in CIT’s credit facility. The defendants, on the oth er hand, argue that their participation agreements are valid and enforceable. As a result, the defendants claim that they have the same priority position as CIT, placing them ahead of Bayer in the receipt of proceeds from AutoStyle’s bankruptcy estate. Before analyzing the arguments of the parties, it is useful to begin with a brief overview of the concept of participation agreements. “A participation is not a loan. To the contrary, a participation is a contractual arrangement between a lender and a third party whereby the third party, labeled a participant, provides funds to the lender.... ” Nahuest USA Credit Corp. v. Aleo Standard Corp., 858 F.Supp. 401, 407-08 (S.D.N.Y.1994). The lender, in turn, uses the funds from the participant to make loans to the borrower. See id. at 408. “The participant is not a lender to the borrower and has no contractual relationship with the borrower.” Ibid. The participant’s only contractual relationship is with the lender; the participant has no ability to seek legal recourse against the borrower. See W. Crews Lott et al., Structuring Multiple Lender Transactions, 112 Banking L.J. 734, 736 (1995); Patrick J. Ledwidge, Loan Participations Among Commercial Banks, 51 Tenn. L.Rev. 519, 528 (1984). Since a participation is, by its nature, contractual, the parties to a participation agreement may choose whatever terms they wish and the agreement will generally be enforced as to its terms. See First Bank of WaKeeney v. Peoples State Bank, 12 Kan.App.2d 788, 758 P.2d 236, 238 (1988). The parties to a participation agreement are attracted by certain incentives. For the"
},
{
"docid": "11378901",
"title": "",
"text": "to divide a large loan which it has or will put on its books into shares which it then offers for sale to other ‘participant’ financial institutions.”); Richard E. Weiner, Rights of a Participant Bank Against a Lead Bank in a Participation Loan Agreement, 104 Banking L.J. 529, 529 (1987) (defining loan participations as evidencing a joint venture by financial institutions designed to provide funds to \"large corporate clients in cases in which it would be impossible for any single financial institution to supply the necessary amount of funds”). . Hibernia Nat’l Bank v. F.D.I.C., 733 F.2d 1403, 1407 (10th Cir.1984). . First Bank of Wakeeney v. Peoples State Bank, 12 Kan.App.2d at 790, 758 P.2d at 238; Continental III. Nat’l Bank and Trust Co. of Chicago v. F.D.I.C. (In re Continental Resources Corp.), 799 F.2d 622, 624 (10th Cir.1986). . Weiner, 104 Banking L.J. at 529-530. . 12 C.F.R. § 32.2. . Weiner, 104 Banking L.J. at 530. . Id. at 530-531. . Bonded, 838 F.2d at 893 (emphasis added). . Security First Nat'l Bank v. Brunson (In re Coutee), 984 F.2d 138, 141, n. 4 (5th Cir.1993)(emphasis added). . Rupp v. Markgraf, 95 F.3d at 941. . Bonded, 838 F.2d at 890. . In re Coutee, 984 F.2d at 138. . In re Ogden, 314 F.3d at 1190. . Rupp v. Markgraf, 95 F.3d at 936. . Tese-Milner v. Moon (In re Moon), 385 B.R. 541, 552 (Bankr.S.D.N.Y.2008), citing In re Coutee, 984 F.2d at 138, n. 4. . Dkt. 148. Participants at page 8 cite In re Potter, 386 B.R. 306, 314 (Bankr.D.Colo.2008) for the proposition \"the proper inquiry to determine status of initial transferee is directed at the first party who 'could have’ exercised control.” To the extent that Participants suggest that Potter’s \"could have” inquiry focuses on physical ability to control without legal right to control, the Court rejects this reading. Potter was concerned with whether a debtor could be an initial transferee with respect to a postpetition transfer. The contractual right of the debtor to exercise control was not an issue. .Further, there is"
},
{
"docid": "10771071",
"title": "",
"text": "the Receiver’s setoffs impaired Northern’s property interests in the loans and collateral; that the borrowers’ knowledge of the participations eviscerated the equities of setoff; and that the setoffs were effected by the Receiver in an inconsistent and arbitrary manner. As an alternative theory, Plaintiff claims that the parties intended to create a fiduciary relationship through the participations. According to this view, Penn Square (and, by extension, the Receiver) were responsible to Northern Trust for segregating and safeguarding Northern’s share of the loan proceeds on a dollar-for-dollar basis. The case is pending before the Court on the Receiver’s motion to dismiss Plaintiffs First Amended Complaint. Discussion Ownership and Property Rights A participation relationship is governed by the terms of the participation agreement. Franklin v. Commissioner of Internal Revenue, 683 F.2d 125 (5th Cir. 1982). In Hibernia National Bank v. FDIC, et al, 733 F.2d 1403 (10th Cir.1984) the Tenth Circuit construed participation certificates identical to those at bar. The Court concluded that the certificates created an assignment coupled with an agency and expressly found that the certificate “cannot be read to transfer the ownership of the loans.” 733 F.2d 1407-1408. (As Plaintiff emphasizes, Hibernia was an injunction suit entailing unique standards of proof; however, that distinction does not undercut the circuit’s substantive interpretation of the certificate’s terms.) The certificates evidencing Northern’s participations (which are set forth in the appendix to this Order) state, inter alia, that Penn Square would “hold for Northern’s account” its pro rata share of loan payments; that Penn Square retained sole discretion to modify or compromise the loans; and that Penn Square’s responsibility to Northern was limited to the “same care” that Penn exercised toward non-participated loans. The terms of Northern’s certificates gave it less input into Penn Square’s management of the participated loans and their collateral than the agreement construed by this Court in Seattle-First Nat’l Bk v. FDIC, 619 F.Supp. 1351 (W.D.Okl.1985), which arguably created property and trust interests. Even that possibility did not preclude offset, however, and the weaker terms of Northern’s certificates do not preclude offset here. The Court concludes that Northern Trust’s"
},
{
"docid": "11218067",
"title": "",
"text": "while the agreements may not have expressly given it the right to insist on foreclosure, the explicit terms of the Credit Agreement and the Intercre-ditor Agreement must be interpreted as implying such a right. Courts have generally refused to rewrite agreements to provide minority lenders with any rights, such as the “implied” right sought here by NBNE, which are not expressly set forth in the agrebments. See, e.g., Hibernia National Bank v. F.D.I.C., 733 F.2d 1403, 1408 (10th Cir.1984); Colorado State Bank of Walsh v. F.D.I.C., 671 F.Supp. 706, 707 (D.Colo.1987) (loan participation purchaser’s claim against selling bank based on “implied duty to collect” on loan dismissed where claim was “contrary to the plain language of the written agreement between the banks”). Nor is there any basis for reading fiduciary or other duties into agreements “among sophisticated lending institutions.” First Citizens Federal Savings and Loan Association v. Worthen Bank and Trust Company, N.A., 919 F.2d 510, 514 (9th Cir.1990). See also Northern Trust Company v. F.D.I.C., 619 F.Supp. 1340 (W.D.Okla.1985). Indeed, to the extent that NBNE’s claim against the other Lenders is premised on a purported “implied” covenant between the Lenders, NBNE has expressly waived such a claim. Section 9(d) of the Intercreditor Agreement, quoted above, specifically provides that none of the Lenders shall have any liability to each other for any action or omission in connection with, among other things, the Credit Agreement or the Inter-creditor Agreement, “except as expressly provided” in those agreements. There is no question that such a limitation of liability among parties such as the lenders here is enforceable under California law. See, e.g., Philippine Airlines, Inc. v. McDonnell Douglas Corp., 189 Cal.App.3d 234, 240, 234 Cal.Rptr. 423, 426 (1987); Price v. Wells Fargo Bank, 213 Cal.App.3d 465, 261 Cal.Rptr. 735 (1989) (affirming dismissal of borrower’s claims that lending bank owed them implied duty of reasonable forbearance in enforcing creditor’s remedies; “[contracts are enforceable at law according to their terms”). In an effort to avoid summary judgment, NBNE has argued that the agreements must be considered ambiguous because the interpretation advanced by the moving Lenders"
},
{
"docid": "11378899",
"title": "",
"text": "Court has jurisdiction over the parties and the subject matter pursuant to 28 U.S.C. §§ 157(a) and 1334(a) and (b), and the Standing Order of the United States District Court for the District of Kansas that exercised authority conferred by § 157(a) to refer to the District’s bankruptcy judges all matters under the Bankruptcy Code and all proceedings arising under the Code or arising in or related to a case under the Code, effective July 10, 1984. Furthermore, this Court may hear and finally adjudicate this matter because it is a core proceeding pursuant to § 157(b)(2)(F). There is no objection to venue or jurisdiction over the parties. The Court has jurisdiction. . Dkt. 64. Stockton does not challenge the Trustee’s position that it is the initial transferee as to $27,958.58, which it retained for its share of the participation in the Note and administrative fees. Dkt. 65. . Dkts. 65 and 159. . Dkt. 148. . Dkt. 149. .Dkt. 165, p. 6. . 4 Norton Bankr.L. & Prac.3d § 70:2 (Thompson/West 2011), citing In re Montross, 209 B.R. 943, 948 (9th Cir. BAP 1997). . Bonded Fin. Serv., Inc. v. European Amer. Bank, 838 F.2d 890, 893 (7th Cir.1988) (hereafter \"Bonded”). . Malloy v. Citizens Bank of Sapulpa (In re First Security Mortg. Co.), 33 F.3d 42, 43-44 (10th Cir.1994), quoting Bonded, 838 F.2d at 893. . Id. . Bonded, 838 F.2d at 894. . Bailey v. Big Sky Motors, Ltd. (In re Ogden), 314 F.3d 1190, 1202 (10th Cir.2002), quoting Rupp v. Markgraf, 95 F.3d 936, 941 (10th Cir.1996). . CLC Creditors’ Grantor Trust v. Howard Savings Bank (In re Commercial Loan Corp.), 396 B.R. 730, 742 (Bankr.N.D.Ill.2008). . Paloian v. LaSalle Bank, N.A., 619 F.3d 688, 691 (7th Cir.2010). . Patrick J. Ledwidge, Loan Participations Among Commercial Banks, 51 Tenn. L.Rev. 519, 520 (1984), quoting Black’s Law dictionary 1008 (5th Ed. 1997); see First Bank of Wakeeney v. Peoples State Bank, 12 Kan.App.2d 788, 790, 758 P.2d 236, 238 (1988) (\"A true participation is a shared loan, an undertaking by one financial institution, usually called the ‘lead’,"
},
{
"docid": "11378881",
"title": "",
"text": "status is voluminous, research by the parties and the Court has not produced any cases answering this question. The Court therefore will examine the legal rights and obligations arising from a loan participation, the Agreements in this case, and the distinctions between a conduit and an initial transferee to resolve the status of Stockton and the Participants under § 550. “A loan participation is an agreement in which ‘two or more banks join a loan with each bank lending a portion of the amount to the borrower.’ ” As stated by the Tenth Circuit, “[i]n a typical participation, the ‘lead’ [bank] ... divides large loans into shares which it then offers for sale to other participating financial institutions,” the participants. The participation agreement governs the participation relationship. Participations have been classified by the courts into two large groups — those which constitute sales by the lead bank to the participating banks and those which are loans to the lead bank by the participants. Where the partic ipation agreement uses the words sale, transfer,' or assignment, the transactions falls into the first category. Under regulations of the Comptroller of the Currency, a sale permits the lead lender to subtract a participated loan, to the extent of the participation, from its loans outstanding for lending limit restrictions if the interests are sold without recourse and the participation results in a pro rata sharing of the credit risk. In this case, the Agreements unambiguously establish that Stockton sold undivided partial interests in the Brooke loan to the Participants. Stockton is identified as the “Originating Lender” and “Seller.” The Participants are identified as “Participating Lenders” and “Purchasers.” Section 2 of the Agreements is labeled “Sale of Participation” and provides that in consideration of the Purchaser’s investment, the Seller sells, without recourse to the Seller, an undivided interest in the principal and interest accruing from the Brooke loan. The Purchasers agree to fund their respective portions of the loan by transmitting funds to the Seller. Purchasers and Seller agree that “Purchaser will be considered for all purposes the legal and equitable owner” of the respective"
},
{
"docid": "10771070",
"title": "",
"text": "ORDER DAVID L. RUSSELL, District Judge. Background Plaintiff Northern Trust Company is an Illinois state banking corporation. Defendant Federal Deposit Insurance Company (“FDIC”) is the Receiver of Penn Square Bank, an Oklahoma national banking corporation that was declared insolvent by the Comptroller of the Currency in July, 1982. Prior to its insolvency, Penn Square originated and participated loans to “upstream” banks such as Northern Trust. Subsequently, in the course of the receivership, the FDIC offset the borrowers’ Penn Square deposit accounts against the balance due on their loans. Receiver’s certificates were issued to Northern in proportion to its stake in the offsets. Northern will take its share of the remaining loan payments in “new money” as it is collected from the borrowers. In Northern Trust’s view, “it appears certain” that the actual value of the Receiver’s certificates will be less than their face value. Unhappy with this prospect of diminished returns on its participations, Northern Trust filed the instant suit, alleging that through the participations it acquired legal ownership of the loans and collateral; that the Receiver’s setoffs impaired Northern’s property interests in the loans and collateral; that the borrowers’ knowledge of the participations eviscerated the equities of setoff; and that the setoffs were effected by the Receiver in an inconsistent and arbitrary manner. As an alternative theory, Plaintiff claims that the parties intended to create a fiduciary relationship through the participations. According to this view, Penn Square (and, by extension, the Receiver) were responsible to Northern Trust for segregating and safeguarding Northern’s share of the loan proceeds on a dollar-for-dollar basis. The case is pending before the Court on the Receiver’s motion to dismiss Plaintiffs First Amended Complaint. Discussion Ownership and Property Rights A participation relationship is governed by the terms of the participation agreement. Franklin v. Commissioner of Internal Revenue, 683 F.2d 125 (5th Cir. 1982). In Hibernia National Bank v. FDIC, et al, 733 F.2d 1403 (10th Cir.1984) the Tenth Circuit construed participation certificates identical to those at bar. The Court concluded that the certificates created an assignment coupled with an agency and expressly found that the"
},
{
"docid": "23072122",
"title": "",
"text": "to do here and assert whatever colorable right the Borrowers might have to seek what amounts to a rescission of the stock purchase from Bankers Allied. See Bruce Const. Corporation v. Federal Realty Corp., supra; American Surety Co. of New York v. Smith, supra; Weimar v. Yacht Club Point Estates, Inc., supra. The third separate contract involved here rests on the cashier’s check, whereby the Bank undertook to pay Bankers Allied $150,000 upon the payment of $150,000 to the Bank by the Borrower’s escrow agent. The Bank attempts to join its obligation under the check to the other agreements to which either the Bank or Bankers Allied were not privy and this it clearly cannot do. The cashier’s check, purchased for adequate consideration, unlike an ordinary check, stands on its own foundation as an independent, unconditional and primary obligation of the Bank. See Riverside Bank v. Maxa, supra. The Bank, whether through its own negligence or through a fraud practiced upon it by the Borrowers, has made an improvident loan. A legal recourse is to seek a judgment against the Borrowers and assert its rights in the collateral securing the loan; it has no right to recover the proceeds of the loan from persons who ultimately received them as a result of executed contracts with the Borrowers. II. In the second portion of this appeal, we are asked to review an order of the District Court granting a motion for summary judgment brought by the Bank as a third-party plaintiff against the National Western Life Insurance Company (hereafter National Western) a third-party defendant, for $140,971.31. We again affirm. On February 3, 1967, the Bank sold National Western a $337,000 participation in its $400,000 loan to the Borrowers. Under the terms of the Certificate of Participation evidencing the agreement between the Bank and National Western, the Bank agreed to “promptly credit to the account of National Western * * * [its] pro rata share of all payments of principal and interest on the * * * loan” and National Western agreed to “pay the Bank on demand its pro rata share"
},
{
"docid": "11315561",
"title": "",
"text": "the third party, labeled a participant, provides funds to the lender.... ” Nahuest USA Credit Corp. v. Aleo Standard Corp., 858 F.Supp. 401, 407-08 (S.D.N.Y.1994). The lender, in turn, uses the funds from the participant to make loans to the borrower. See id. at 408. “The participant is not a lender to the borrower and has no contractual relationship with the borrower.” Ibid. The participant’s only contractual relationship is with the lender; the participant has no ability to seek legal recourse against the borrower. See W. Crews Lott et al., Structuring Multiple Lender Transactions, 112 Banking L.J. 734, 736 (1995); Patrick J. Ledwidge, Loan Participations Among Commercial Banks, 51 Tenn. L.Rev. 519, 528 (1984). Since a participation is, by its nature, contractual, the parties to a participation agreement may choose whatever terms they wish and the agreement will generally be enforced as to its terms. See First Bank of WaKeeney v. Peoples State Bank, 12 Kan.App.2d 788, 758 P.2d 236, 238 (1988). The parties to a participation agreement are attracted by certain incentives. For the lead lender, the attractions are many: The lead [lender] receives immediate repayment of a portion of the loan from the participants, and is thereby able to make additional loans to either the same or to new borrowers. The lead [lender] also earns income in the form of loan origination fees and loan servicing charges. At times, the participation device permits the lead institution to accommodate consumer credit demands without exceeding its legal lending limit. The loan participation is appealing because it allows a lending institution to share the lending risk. W.H. Knight, Jr., Loan Participation Agreements: Catching Up with Contract Law, 1987 Colum. Bus. L.Rev. 587, 589 (1987). By entering into participation agreements, then, the lender obtains the benefit of being able “to make a loan which is greater than its lending authority.” First Bank of WaKeeney, 758 P.2d at 238. The participant, on the other hand, “obtains the benefits of the lender’s security interest and priority of payment.” Natwest USA, 858 F.Supp. at 408 (emphasis added). In In re Coronet Capital Co., 142 B.R."
}
] |
777844 | granted. He was “shocked” when the motion was denied and asked for a short continuance, during which he spoke with Coward and decided to call her as a witness because her testimony placed Mosley in the schoolyard all evening. He did not recall speaking with Taylor but testified that her testimony placing Mosley briefly inside the apartment building would have contradicted his theory that Mosley was in the schoolyard the entire night. Strunck also described as harmful Taylor’s testimony that Mosley was in the schoolyard with only men and children, which contradicted Coward’s testimony that adult females also were present. After the hearing but before the district court rendered its decision on Mosley’s petition, the Supreme Court decided REDACTED which holds that review of state-court proceedings under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the merits of the claims in the petition. Based on that ruling, and argument from the State, the district court disregarded the new evidence from the evidentiary hearing and limited its analysis to the state trial record, including the affidavits from Jones and Taylor. Yet based on that limited review, the district court concluded that Mosley had met the standards of § 2254(d)(1) in two respects. First, the court determined that the state court had unreasonably determined that Strunek’s failure to call Jones and Taylor was part of his trial strategy. Second, the court ruled | [
{
"docid": "21800068",
"title": "",
"text": "Schriro v. Landrigan, 550 U. S. 465 (2007), is consistent as well with our holding here. We explained that “[bjecause the deferential standards prescribed by §2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate.” Id., at 474. In practical effect, we went on to note, this means that when the state-court record “precludes habeas relief” under the limitations of § 2254(d), a district court is “not required to hold an evidentiary hearing.” Id., at 474 (citing with approval the Ninth Circuit’s recognition that “an evidentiary hearing is not required on issues that can be resolved by reference to the state court record” (internal quotation marks omitted)). The Court of Appeals wrongly interpreted Williams v. Taylor, 529 U. S. 420 (2000) (Michael Williams), as supporting the contrary view. The question there was whether the lower court had correctly determined that § 2254(e)(2) barred the petitioner’s request for a federal evidentiary hearing. Michael Williams did not concern whether evidence introduced in such a hearing could be considered under § 2254(d)(1). In fact, only one claim at issue in that case was even subject to § 2254(d); the rest had not been adjudicated on the merits in state-court proceedings. See id., at 429 (“Petitioner did not develop, or raise, his claims . . . until he filed his federal habeas petition”). If anything, the decision in Michael Williams supports our holding. The lower court in that case had determined that the one claim subject to § 2254(d)(1) did not satisfy that statutory requirement. In light of that ruling, this Court concluded that it was “unnecessary to reach the question whether § 2254(e)(2) would permit a [federal] hearing on th[at] claim.” Id., at 444. That conclusion is fully consistent with our holding that evidence later introduced in federal court is irrelevant to § 2254(d)(1) review. The Court of Appeals’ reliance on Holland v. Jackson, 542 U. S. 649 (2004) (per curiam), was also mistaken. In Holland, we initially stated that “whether a state court’s decision was unreasonable [under §"
}
] | [
{
"docid": "7707177",
"title": "",
"text": "as a witness even though she was present for Mosley’s trial. Sharon Taylor’s apartment was directly above Fernando’s. Taylor stated in her affidavit that she was in her apartment sitting on a couch by an open window with her son. She saw Mosley and a group of people running from the schoolyard yelling that the building was on fire, but she never heard Mosley tell someone to burn down the building. Mosley helped people to safety, including her son, whom Taylor dropped into Mosley’s arms from her window. Taylor later learned that Mosley was arrested for the fire and that he was accused of telling someone to burn down the building or saying to let the building burn. Taylor stated that the allegations were not true because she witnessed Mosley run across the street from the schoolyard with other people. Taylor suggested to Mosley that she testify on his behalf, and he gave her his attorney’s contact information. She was unable to reach the attorney by phone, but approached him in court and told him that she would like to testify for Mosley. The attorney assured Taylor that she would be called as a witness, but she was never called to testify even though she was present during Mosley’s trial. After reviewing the trial record and the affidavits of Jones and Taylor, the Illinois trial court summarily denied Mosley’s post-conviction petition as frivolous and without merit, finding that Mosley’s attorney did not call Jones and Taylor as a matter of trial strategy and that if they had been called to testify, the result of the trial would not have been different. Mosley appealed that ruling, and, after reviewing de novo the ineffective assistance of counsel claim, the Illinois Appellate Court affirmed. On the performance prong, the appellate court found that the trial attorney’s decision not to call Taylor and Jones as alibi witnesses was reasonable and a matter of trial strategy. The appellate court also found that Mosley had failed to satisfy the prejudice prong of Strickland, “as the record shows that the outcome of the trial would not have"
},
{
"docid": "7707201",
"title": "",
"text": "court’s denial of relief was erroneous under the strict standards of § 2254(d)(1). In fact, in his separate opinion in Pinholster, Justice Breyer explained this problem and its correct solution: For example, if the state-court rejection assumed the habeas petitioner’s facts (deciding that, even if those facts were true, federal law was not violated), then (after finding the state court wrong on a (d) ground), an (e) hearing [under § 2254(e)] might be needed to determine whether the facts alleged were indeed true. Or if the state-court rejection rested on a state ground, which a federal habeas court found inadequate, then an (e) hearing might be needed to consider the petitioner’s (now unblocked) substantive federal claim. Or if the state-court rejection rested on only one of several related federal grounds {e.g., that counsel’s assistance was not “inadequate”), then, if the federal court found that the state court’s decision in respect to the ground in deciding violated (d), an (e) hearing might be needed to consider other related parts of the whole constitutional claim {e.g., whether the counsel’s “inadequate” assistance was also prejudicial). There may be other situations in which an (e) hearing is needed as well. 131 S.Ct. at 1412 (Breyer, J., concurring in part and dissenting in part). Mosley’s sit uation fits neatly within Justice Breyer’s first hypothetical. The state court evaluated Mosley’s claim as supported by the Jones and Taylor affidavits and decided that even if those affidavits were true, Mosley had not stated a claim for ineffective assistance of counsel. The district court correctly found that the state court was wrong on two (d) grounds. (The state court’s performance analysis was unreasonable and its prejudice analysis was contrary to clearly established federal law.) So Mosley cleared the § 2254(d) hurdle. That leaves Justice Breyer’s final and most basic question: are the facts alleged in the affidavits indeed true? To answer that question, the district court needed to hold an evidentiary hearing, as it did, but also to make findings on the disputed facts, which it did not. We thus vacate the district court’s grant of Mosley’s petition"
},
{
"docid": "7707196",
"title": "",
"text": "seems to be arguing that even if Mosley had not made the statement at issue and was indeed across the street at the time the fire was set, he still would have been found guilty. We agree that if the judge had rejected Fernando’s and Ledbetter’s testimony, it still would have been possible to find Mosley guilty under that reasoning, at least in theory. But the theoretical possibility does not defeat Mosley’s showing of prejudice under Strickland. The trial judge gave detailed reasons for finding Mosley guilty. Those comments show that two findings were central to the verdict: (1) Mosley was in fact under Fernando’s window before the fire was set, and (2) he in fact told the two younger boys to “burn this motherfucker down.” The State also reiterates its argument that the testimony of Jones and Taylor would have been merely cumulative to that of Ishi Coward. As explained above regarding the performance prong, Jones’s and Taylor’s substantially similar testimony, at least as set out in their affidavits, would not have been cumulative. Coward’s testimony was confused and was not corroborated. It is clear from the transcript that Mosley’s location at the time the fire was set was the key issue to the judge. Additional alibi witnesses can add “a great deal of substance and credibility to [the defendant’s] alibi.” Washington, 219 F.3d at 634. Thus, if the Jones and Taylor affidavits are taken at face value, we agree with the district court that there is a reasonable probability that the result of the trial would have been different with the addition of two alibi witnesses to contradict Fernando’s testimony and support Coward’s. We affirm the district court’s holding that, based on the state court record, Mosley has met the requirements of § 2254(d). C. Section 225A(a) Mosley argues that the inquiry should end there: based on the evidence available to the state court, his counsel was ineffective and thus his habeas petition should be granted to give him a new trial. Mosley further argues (and the district court agreed) that the State waived its right to ask"
},
{
"docid": "7707185",
"title": "",
"text": "According to their affidavits, Jones and Taylor would have testified that Mosley was in the schoolyard across the street. That testimony would not have been cumulative to the testimony of Ishi Coward, who was confused by the trial judge’s questioning and seemed to testify (incorrectly) at one point that no one from the schoolyard, including Mosley, ever left to go to the burning building. “[Testimony of additional witnesses cannot automatically be categorized as cumulative and unnecessary.” Crisp v. Duckworth, 743 F.2d 580, 585 (7th Cir.1984). Where, as here, the location of the defendant is critical to the case and there were problems with the testimony of the sole alibi witness, additional witnesses may well be critical for effective representation. See, e.g., Washington v. Smith, 219 F.3d 620, 634 (7th Cir.2000) (finding counsel’s failure to investigate and call additional witnesses was deficient due in part to the fact that the one alibi witness who was called had questionable credibility because of prior convictions); Montgomery v. Petersen, 846 F.2d 407, 411-15 (7th Cir.1988) (finding counsel ineffective for not calling additional, disinterested alibi witnesses not subject to the same impeachment as family members). The state court said that Jones’s and Taylor’s testimony “would have reinforced that defendant was across the street from the fire at the time that it occurred, thereby strengthening the State’s case against him based on accountability.” That determination was not reasonable. As the district court correctly noted, it is exactly the ability of Jones and Taylor to place Mosley across the street (and not under Fernando’s window ordering the boys to set the fire) that could have made a difference. The lynchpin of the prosecution’s case, tying Mosley to the actions of the younger boys, was the “burn this motherfucker down” comment that Fernando and Led-better claimed to have heard. To say that the state trial judge relied heavily on that comment would be an understatement — he quoted it numerous times in pronouncing guilt and sentencing Mosléy. When discussing defense counsel’s assertion that any statement made by Mosley was made after coming upon a fire already set, the"
},
{
"docid": "7707175",
"title": "",
"text": "saw a fire at the building, they all ran across the street. Coward testified that she never heard Mosley tell anyone to burn the building down or to let the building burn. The judge found Mosley guilty of first-degree murder and aggravated arson based on accountability, and sentenced him to consecutive prison terms of 60 and 15 years, respectively. Mosley appealed his convictions, which were affirmed on February 6, 2002. Mosley did not seek further direct review of his convictions. 2. Post-Conviction State Court Proceedings Five years after the fatal fire, on September 5, 2002, Mosley filed a post-conviction petition in state court, pursuant to the Illinois PosMUonviction Hearing Act of 1998, 725 ILCS 5/122 et seq., claiming that he was denied the effective assistance of trial counsel. Mosley alleged that his counsel was ineffective for failing to present the testimony of two alibi witnesses, Keely Jones and Sharon Taylor. In support of his petition, Mosley attached affidavits from Jones and Taylor. Jones stated that on August 15, 1997, she arrived at the schoolyard at about 7:45 or 8:00 p.m. and met with several people, including Mosley. The group had been there a couple of hours when they heard someone shouting about a fire and they saw the building was on fire. Everyone ran across the street to the building to see if they could help, and Mosley assisted some of the people in the fire to safety. When Jones learned a couple of days after the incident that Mosley was arrested in connection with the fire, she went to visit him and was told he was accused of telling someone to burn the building down or of saying to let the building burn. Jones told Mosley that she would testify on his behalf, and Mosley gave Jones his attorney’s contact information. Jones was unable to reach the attorney by phone but spoke with him on three separate occasions in the courtroom, telling him that she would testify for Mosley. Mosley’s attorney told her that he would need her to testify, but he never contacted Jones and never called her"
},
{
"docid": "7707174",
"title": "",
"text": "Fernando testified, she heard Mosley say he was going to “kill that B.” Then immediately before she realized her building was on fire, she heard Mosley say “burn this motherfucker down.” Nailal Ledbetter, a friend of Fernando’s, testified that she was at Fernando’s apartment on the evening of the fire. According to Ledbetter, when the fire started between 10:00 and 10:30 p.m., Mosley ran past the window, looked up, and said, “burn this motherfucker down.” Officer Robert Tovar testified that Mosley, after being brought into the police station the day after the fire, admitted that he said “let it burn” before he saw people being injured as a result of the fire. The sole defense witness was Ishi Coward. She testified that on the evening of the fire, she, Mosley, and a group of people were in the schoolyard at 70th Street and Rhodes Avenue between 7:00 and 7:30 p.m. She testified that Mosley was in the schoolyard the entire time until the fire occurred at about 10:30 p.m. When she, Mosley, and the others saw a fire at the building, they all ran across the street. Coward testified that she never heard Mosley tell anyone to burn the building down or to let the building burn. The judge found Mosley guilty of first-degree murder and aggravated arson based on accountability, and sentenced him to consecutive prison terms of 60 and 15 years, respectively. Mosley appealed his convictions, which were affirmed on February 6, 2002. Mosley did not seek further direct review of his convictions. 2. Post-Conviction State Court Proceedings Five years after the fatal fire, on September 5, 2002, Mosley filed a post-conviction petition in state court, pursuant to the Illinois PosMUonviction Hearing Act of 1998, 725 ILCS 5/122 et seq., claiming that he was denied the effective assistance of trial counsel. Mosley alleged that his counsel was ineffective for failing to present the testimony of two alibi witnesses, Keely Jones and Sharon Taylor. In support of his petition, Mosley attached affidavits from Jones and Taylor. Jones stated that on August 15, 1997, she arrived at the schoolyard at"
},
{
"docid": "7707181",
"title": "",
"text": "“contrary to, or involved an unreasonable application of’ the federal law clearly established by the Supreme Court in Strickland v. Washington. See 28 U.S.C. § 2254(d)(1). To demonstrate ineffective assistance under Strickland, a prisoner must show both that counsel’s performance was deficient and that the prisoner was prejudiced as a result. 466 U.S. at 687,104 S.Ct. 2052. 1. Performance The performance standard provides significant latitude for permissible attorney conduct, and a prisoner “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (internal quotation marks omitted). If the prisoner has identified specific errors or omissions, the court must determine “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052. In its post-conviction review of Mosley’s case, the Illinois Appellate Court concluded that trial counsel’s decision not to call Taylor and Jones as alibi witnesses was reasonable and a matter of trial strategy because (1) their testimony would have been cumulative to that of Ishi Coward and (2) their testimony would have bolstered the state’s case against Mosley on a theory of accountability by reinforcing the fact that he was across the street when the fire began. The state court’s analysis was an unreasonable application of Strickland for two reasons. First, on the limited record before the state courts, it was unreasonable to find summarily that trial counsel chose not to call Jones and Taylor as a matter of strategy. According to their affidavits, which were treated as true for purposes of the state courts’ summary disposition, Mosley’s lawyer never even interviewed them to learn what they might say. On that limited record before the state courts, the courts had to assume the lawyer was not aware of the specifics of their potential testimony. To avoid the inevitable temptation to evaluate a lawyer’s performance through the distorting lens of hindsight, Strickland establishes a deferential presumption that strategic judgments made by defense counsel are reasonable. 466 U.S. at 690-91, 104"
},
{
"docid": "7707184",
"title": "",
"text": "already been established by other evidence.” Smith v. Secretary of New Mexico Dep’t of Corrections, 50 F.3d 801, 829 (10th Cir.1995); Watkins v. Miller, 92 F.Supp.2d 824, 837 (S.D.Ind.2000). Whether evidence is cumulative or not is a particular type of problem in evaluating the probative value of evidence, and it requires judgment. Evidence that provides corroborating support to one side’s sole witness on a central and hotly contested factual issue cannot reasonably be described as cumulative. See, e.g., United States v. Vickers, 442 FedAppx. 79, 84 (5th Cir.2011); United States v. Stevens, 277 FedAppx. 898, 900-01 (11th Cir.2008); Vasquez v. Jones, 496 F.3d 564, 576 (6th Cir.2007); see generally Arizona v. Fulminante, 499 U.S. 279, 299, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (second defendant’s confession was not merely cumulative of first defendant’s confession where they could reinforce and corroborate each other). Here, Mosley’s location when the fire was started was the critical issue in the case. Fernando testified that Mosley was underneath her window ordering the two younger boys to burn down the building. According to their affidavits, Jones and Taylor would have testified that Mosley was in the schoolyard across the street. That testimony would not have been cumulative to the testimony of Ishi Coward, who was confused by the trial judge’s questioning and seemed to testify (incorrectly) at one point that no one from the schoolyard, including Mosley, ever left to go to the burning building. “[Testimony of additional witnesses cannot automatically be categorized as cumulative and unnecessary.” Crisp v. Duckworth, 743 F.2d 580, 585 (7th Cir.1984). Where, as here, the location of the defendant is critical to the case and there were problems with the testimony of the sole alibi witness, additional witnesses may well be critical for effective representation. See, e.g., Washington v. Smith, 219 F.3d 620, 634 (7th Cir.2000) (finding counsel’s failure to investigate and call additional witnesses was deficient due in part to the fact that the one alibi witness who was called had questionable credibility because of prior convictions); Montgomery v. Petersen, 846 F.2d 407, 411-15 (7th Cir.1988) (finding counsel ineffective for"
},
{
"docid": "7707176",
"title": "",
"text": "about 7:45 or 8:00 p.m. and met with several people, including Mosley. The group had been there a couple of hours when they heard someone shouting about a fire and they saw the building was on fire. Everyone ran across the street to the building to see if they could help, and Mosley assisted some of the people in the fire to safety. When Jones learned a couple of days after the incident that Mosley was arrested in connection with the fire, she went to visit him and was told he was accused of telling someone to burn the building down or of saying to let the building burn. Jones told Mosley that she would testify on his behalf, and Mosley gave Jones his attorney’s contact information. Jones was unable to reach the attorney by phone but spoke with him on three separate occasions in the courtroom, telling him that she would testify for Mosley. Mosley’s attorney told her that he would need her to testify, but he never contacted Jones and never called her as a witness even though she was present for Mosley’s trial. Sharon Taylor’s apartment was directly above Fernando’s. Taylor stated in her affidavit that she was in her apartment sitting on a couch by an open window with her son. She saw Mosley and a group of people running from the schoolyard yelling that the building was on fire, but she never heard Mosley tell someone to burn down the building. Mosley helped people to safety, including her son, whom Taylor dropped into Mosley’s arms from her window. Taylor later learned that Mosley was arrested for the fire and that he was accused of telling someone to burn down the building or saying to let the building burn. Taylor stated that the allegations were not true because she witnessed Mosley run across the street from the schoolyard with other people. Taylor suggested to Mosley that she testify on his behalf, and he gave her his attorney’s contact information. She was unable to reach the attorney by phone, but approached him in court and told him"
},
{
"docid": "7707194",
"title": "",
"text": "younger boys’ starting of the fire. She then testified that she walked from the bathroom to her living room, looked out an open window, and saw Mosley standing outside alone. She then looked up and saw a group of individuals ■ running from the schoolyard on the corner yelling that the building was on fire. She opened her front door, saw smoke in the hallway, and saw the two younger boys running down the hall. The district court described the problem persuasively: Fernando’s testimony presents an almost impossible factual scenario. First of all, if Fernando’s version of events is to be believed, the following must have happened: in the time it took her to walk from her bathroom (where she allegedly heard Mosley say “burn the motherfucker down”) to her living room, the two boys who lit the fire ran from below her window (where they were allegedly getting the directive from Mosley to start the fire) into the apartment building, ran up the stairs to the second floor, poured gasoline in the opening to the second floor hallway, and lit the fire. Fernando claimed that when she looked out her living room window and identified Mosley, she saw a group of people running towards her building from the schoolyard yelling that the building was on fire. So, in the time it took Fernán do to walk from her bathroom to her living room, Mosley gave the directive, the boys ran into the building, threw the gasoline, lit the fire, and the fire progressed so that smoke was visible to the crowd of people across the street in the schoolyard. 2011 WL 3840332, at *4. Not even Ledbetter’s testimony supports this version of the events: She testified that she noticed “people were yelling fire, fire, fire,” and then she went to the window and saw Mosley standing below “yelling burn this down.” The State argues that Mosley was not prejudiced by trial counsel’s decision not to call Jones and Taylor because their evidence was not exculpatory — it could not negate Mosley’s guilt on an accountability theory. Essentially, the State"
},
{
"docid": "7707197",
"title": "",
"text": "Coward’s testimony was confused and was not corroborated. It is clear from the transcript that Mosley’s location at the time the fire was set was the key issue to the judge. Additional alibi witnesses can add “a great deal of substance and credibility to [the defendant’s] alibi.” Washington, 219 F.3d at 634. Thus, if the Jones and Taylor affidavits are taken at face value, we agree with the district court that there is a reasonable probability that the result of the trial would have been different with the addition of two alibi witnesses to contradict Fernando’s testimony and support Coward’s. We affirm the district court’s holding that, based on the state court record, Mosley has met the requirements of § 2254(d). C. Section 225A(a) Mosley argues that the inquiry should end there: based on the evidence available to the state court, his counsel was ineffective and thus his habeas petition should be granted to give him a new trial. Mosley further argues (and the district court agreed) that the State waived its right to ask the district court to examine the evidence from the evidentiary hearing when it cited Pinholster for the proposition that new evidence could not be considered in deciding under § 2254(d) whether the state court’s decision had been contrary to or an unreasonable application of clearly established federal law. The State did not mention in that filing that it thought the new evidence should be considered if the district court found that Mosley had met the requirements of § 2254(d). We disagree with this finding of waiver. Mosley’s waiver theory assumes that the State needed to think through every possible implication of Pinholster to avoid waiver on any of the possible permutations and errors that might be made in the district court’s ultimate decision. We believe that the theory expects too much of lawyers. The State’s lawyers certainly did not invite or encourage the critical error that was made here. The State simply made no mention of considering the testimony from the evidentiary hearing if the district court found that the state court decision was contrary"
},
{
"docid": "7707187",
"title": "",
"text": "judge specifically found that Mosley was below Fernando’s window before the fire was set and that the comment was indeed a directive to the two boys. Additional witnesses placing Mosley across the street, and not in front of the building at the time the fire was set would have bolstered the defense’s theory, not the prosecution’s. Because, according to the affidavits that had to be taken as true in the state courts’ summary disposition, trial counsel failed even to interview Jones and Taylor to learn the content of their potential testimony, it was unreasonable for the state appellate court to find summarily that trial counsel made a strategic decision not to call them as witnesses. In addition, it was unreasonable for the state appellate court to find summarily that their potential testimony would have been cumulative or would have bolstered the state’s case. 2. Prejudice To succeed on a Strickland ineffective assistance of counsel claim, Mosley must also show that he suffered prejudice as a result of his counsel’s poor performance. The state court found that Mosley had not satisfied the prejudice prong. The problem is that the state court repeatedly misstated the controlling constitutional standard under Strickland. For example, citing Strickland itself, the Illinois Appellate Court set out the prejudice prong as “he must show that ... he was prejudiced, that is, the result of the proceedings would have differed but for defense counsel’s deficient performance.” App. 32 (emphasis added). Later, the court reiterated: “As the trial court stated, had defense counsel called Taylor and Jones to testify, the result of the trial ivould not have differed, as they merely would have placed defendant across the street at the time of the offense.” App. 36 (emphasis added). The district court found that the state appellate court’s decision was, in the terms of § 2254(d)(1), “contrary to” Strickland because it required Mosley to show that the result would have been different. We agree. Strickland’s prejudice prong actually requires that the defendant show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have"
},
{
"docid": "7707179",
"title": "",
"text": "differed if Jones and Taylor had testified.” Mosley’s petition for leave to appeal to the Illinois Supreme Court was denied without opinion. 3. Federal Habeas Proceedings Mosley then filed a petition for writ of habeas corpus in the federal district court, again asserting ineffective assistance of counsel, and the district court held an evidentiary hearing. Shortly after that hearing, the Supreme Court issued Cullen v. Pinholster, — U.S. --, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), which the State argued required the district court to confine its review to the record before the state court. The district court accepted this argument and disregarded the evidence from the evidentiary hearing, limiting its analysis to the state trial record and the affidavits from Jones and Taylor, for that was the evidence available to the state court when it reviewed Mosley’s ineffective assistance of counsel claim. Mosley, 2011 WL 3840332, at *1 n. 2. Based on that review, the district court determined that Mosley’s claim met the requirements of § 2254(d) in two ways. On the performance prong of Strickland, the district court determined that it was unreasonable for the state court to find that trial counsel’s decision not to call Jones and Taylor was a matter of trial strategy. On the prejudice prong, the district court found that the state court’s decision was contrary to established Supreme Court precedent because it required Mosley to show that the outcome would have been different, rather than only a “reasonable probability” of a different outcome required under the Strickland standard. Thus, the district court conducted a de novo review of the prejudice inquiry and determined that there was a reasonable probability that, but for the unprofessional errors of counsel, the outcome of the trial would have been different. The State has appealed the district court’s grant of Mosley’s habeas petition. We review de novo the district court’s decision to grant habeas relief. Suh v. Pierce, 630 F.3d 685, 690 (7th Cir.2011). B. Section 225k(d) Our first task is to determine whether the Illinois Appellate Court’s rejection of Mosley’s ineffective assistance of counsel claim was either"
},
{
"docid": "7707173",
"title": "",
"text": "Wilson. The fibre was arson, so Wilson’s death was murder. Expert testimony at trial established that gasoline was poured on stairwell doors located on the building’s second floor and was lit with a match or a cigarette lighter. Mosley was arrested and charged with murder and arson based on a theory of accountability. Under Illinois law, Mosley was “accountable” for the murder and arson if, either before or during the commission of the offense, he solicited, aided, abetted, agreed, or attempted to aid another in the planning or the commission of the offense. 720 ILCS 5/5-2; People v. Perez, 189 Ill.2d 254, 244 Ill.Dec. 371, 725 N.E.2d 1258, 1264 (2000). The State’s theory was that Mosley had ordered two younger gang associates, then 14 and 13 years old, to set the building on fire. At Mosley’s trial, Fernando testified that after she began calling the police about two weeks before the fire, she heard Mosley say on at least five occasions that he was going to kill her. Earlier on the day of the fire, Fernando testified, she heard Mosley say he was going to “kill that B.” Then immediately before she realized her building was on fire, she heard Mosley say “burn this motherfucker down.” Nailal Ledbetter, a friend of Fernando’s, testified that she was at Fernando’s apartment on the evening of the fire. According to Ledbetter, when the fire started between 10:00 and 10:30 p.m., Mosley ran past the window, looked up, and said, “burn this motherfucker down.” Officer Robert Tovar testified that Mosley, after being brought into the police station the day after the fire, admitted that he said “let it burn” before he saw people being injured as a result of the fire. The sole defense witness was Ishi Coward. She testified that on the evening of the fire, she, Mosley, and a group of people were in the schoolyard at 70th Street and Rhodes Avenue between 7:00 and 7:30 p.m. She testified that Mosley was in the schoolyard the entire time until the fire occurred at about 10:30 p.m. When she, Mosley, and the others"
},
{
"docid": "7707202",
"title": "",
"text": "the counsel’s “inadequate” assistance was also prejudicial). There may be other situations in which an (e) hearing is needed as well. 131 S.Ct. at 1412 (Breyer, J., concurring in part and dissenting in part). Mosley’s sit uation fits neatly within Justice Breyer’s first hypothetical. The state court evaluated Mosley’s claim as supported by the Jones and Taylor affidavits and decided that even if those affidavits were true, Mosley had not stated a claim for ineffective assistance of counsel. The district court correctly found that the state court was wrong on two (d) grounds. (The state court’s performance analysis was unreasonable and its prejudice analysis was contrary to clearly established federal law.) So Mosley cleared the § 2254(d) hurdle. That leaves Justice Breyer’s final and most basic question: are the facts alleged in the affidavits indeed true? To answer that question, the district court needed to hold an evidentiary hearing, as it did, but also to make findings on the disputed facts, which it did not. We thus vacate the district court’s grant of Mosley’s petition for habeas corpus. The district court already held an evidentiary hearing, and in light of Pinholster•, it properly did not rely on that evidence in its § 2254(d) analysis. The State now urges that we consider the evidence presented at that hearing and make a § 2254(a) determination as to whether the allegations in the affidavits were true and, by extension, whether petitioner is in custody in violation of federal law (and urges that the answer to that question is no). Mosley, likewise, argues that if we were to consider the evidence presented at the evidentiary hearing, we would find that it supports his claim that he is entitled to habeas relief. We decline the invitations to review the testimony from the evidentiary hearing and to make a § 2254(a) determination ourselves. That would require the judges of this court to resolve issues of credibility and to act as triers of fact. We could not do that job on the basis of a written transcript. We instead remand the matter to the district court. Reviewing"
},
{
"docid": "7707204",
"title": "",
"text": "new evidence and making findings of fact is properly the responsibility of the district court. We must remand and direct the district court to consider the evidence presented in the evidentiary hearing, to hold a new hearing, or both, to determine whether Mosley’s trial counsel was in fact constitutionally ineffective such that Mosley’s petition for habeas corpus should be granted under § 2254(a). III. Conclusion The state appellate court’s decision that Mosley was not denied effective assistance of counsel was contrary to and an unreasonable application of clearly established federal law. We affirm the district court’s determination that Mosley has met the requirements of 28 U.S.C. § 2254(d). We vacate, however, the district court’s grant of Mosley’s habeas petition and remand for a determination of whether, based on new evidence not available to the state appellate court, Mosley’s trial counsel was in fact constitutionally ineffective. The district court may rely on the evidentiary hearing held July 29 and August 3, 2010, or may hold a new evidentiary hearing, or both. Vacated and Remanded . Before the Supreme Court decided Pinholster, the district court in this case had already held a two-day evidentiary hearing. After Pinholster was decided, the State brought the decision to the district court’s attention, arguing that for purposes of § 2254(d), the district court had to determine whether the state court’s decision was contrary to or an unreasonable application of federal law based only on the evidence available to the state court when it made its decision. The district court agreed with the State and disregarded the evidentiary hearing when conducting its § 2254(d) analysis. Mosley, the State, and we agree that after Pinholster, the district court was correct to limit its review. . We agree with Mosley that \"[t]he power of a court to grant a petition without an evidentiary hearing is unchanged by the Court’s ruling in Pinholster.” But that is beside the point. It is not Pinholster that compels the evidentiary hearing, but the fact that evidence relevant to the merits of Mosley's claim, and tending to undermine it, was never presented to the"
},
{
"docid": "7707178",
"title": "",
"text": "that she would like to testify for Mosley. The attorney assured Taylor that she would be called as a witness, but she was never called to testify even though she was present during Mosley’s trial. After reviewing the trial record and the affidavits of Jones and Taylor, the Illinois trial court summarily denied Mosley’s post-conviction petition as frivolous and without merit, finding that Mosley’s attorney did not call Jones and Taylor as a matter of trial strategy and that if they had been called to testify, the result of the trial would not have been different. Mosley appealed that ruling, and, after reviewing de novo the ineffective assistance of counsel claim, the Illinois Appellate Court affirmed. On the performance prong, the appellate court found that the trial attorney’s decision not to call Taylor and Jones as alibi witnesses was reasonable and a matter of trial strategy. The appellate court also found that Mosley had failed to satisfy the prejudice prong of Strickland, “as the record shows that the outcome of the trial would not have differed if Jones and Taylor had testified.” Mosley’s petition for leave to appeal to the Illinois Supreme Court was denied without opinion. 3. Federal Habeas Proceedings Mosley then filed a petition for writ of habeas corpus in the federal district court, again asserting ineffective assistance of counsel, and the district court held an evidentiary hearing. Shortly after that hearing, the Supreme Court issued Cullen v. Pinholster, — U.S. --, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), which the State argued required the district court to confine its review to the record before the state court. The district court accepted this argument and disregarded the evidence from the evidentiary hearing, limiting its analysis to the state trial record and the affidavits from Jones and Taylor, for that was the evidence available to the state court when it reviewed Mosley’s ineffective assistance of counsel claim. Mosley, 2011 WL 3840332, at *1 n. 2. Based on that review, the district court determined that Mosley’s claim met the requirements of § 2254(d) in two ways. On the performance prong"
},
{
"docid": "7707195",
"title": "",
"text": "the second floor hallway, and lit the fire. Fernando claimed that when she looked out her living room window and identified Mosley, she saw a group of people running towards her building from the schoolyard yelling that the building was on fire. So, in the time it took Fernán do to walk from her bathroom to her living room, Mosley gave the directive, the boys ran into the building, threw the gasoline, lit the fire, and the fire progressed so that smoke was visible to the crowd of people across the street in the schoolyard. 2011 WL 3840332, at *4. Not even Ledbetter’s testimony supports this version of the events: She testified that she noticed “people were yelling fire, fire, fire,” and then she went to the window and saw Mosley standing below “yelling burn this down.” The State argues that Mosley was not prejudiced by trial counsel’s decision not to call Jones and Taylor because their evidence was not exculpatory — it could not negate Mosley’s guilt on an accountability theory. Essentially, the State seems to be arguing that even if Mosley had not made the statement at issue and was indeed across the street at the time the fire was set, he still would have been found guilty. We agree that if the judge had rejected Fernando’s and Ledbetter’s testimony, it still would have been possible to find Mosley guilty under that reasoning, at least in theory. But the theoretical possibility does not defeat Mosley’s showing of prejudice under Strickland. The trial judge gave detailed reasons for finding Mosley guilty. Those comments show that two findings were central to the verdict: (1) Mosley was in fact under Fernando’s window before the fire was set, and (2) he in fact told the two younger boys to “burn this motherfucker down.” The State also reiterates its argument that the testimony of Jones and Taylor would have been merely cumulative to that of Ishi Coward. As explained above regarding the performance prong, Jones’s and Taylor’s substantially similar testimony, at least as set out in their affidavits, would not have been cumulative."
},
{
"docid": "7707193",
"title": "",
"text": "the Jones and Taylor affidavits are taken at face value, Mosley was prejudiced by his counsel’s failure to call the two witnesses. Fernando, the primary witness against Mosley, had a clear motive to lie. She admitted she was involved in an ongoing dispute with Mosley over the sale of illegal drugs in the neighborhood. She also claimed that he and his fellow gang members were threatening her as a result of her refusal to pay the gang’s “tax,” and that she called the police every time they gathered on the corner. Fernando had a strong motive for wanting Mosley incarcerated, so her credibility was suspect. Further, Fernando’s testimony regarding the “burn this motherfucker down” comment leads to more questions than answers. According to her testimony at trial, Fernando was in her apartment doing her hair with her friend. She went to her bathroom to get conditioner for her hair when, she claimed, she heard Mosley say “burn this motherfucker down.” This comment was the State’s key piece of evidence for holding Mosley accountable for the younger boys’ starting of the fire. She then testified that she walked from the bathroom to her living room, looked out an open window, and saw Mosley standing outside alone. She then looked up and saw a group of individuals ■ running from the schoolyard on the corner yelling that the building was on fire. She opened her front door, saw smoke in the hallway, and saw the two younger boys running down the hall. The district court described the problem persuasively: Fernando’s testimony presents an almost impossible factual scenario. First of all, if Fernando’s version of events is to be believed, the following must have happened: in the time it took her to walk from her bathroom (where she allegedly heard Mosley say “burn the motherfucker down”) to her living room, the two boys who lit the fire ran from below her window (where they were allegedly getting the directive from Mosley to start the fire) into the apartment building, ran up the stairs to the second floor, poured gasoline in the opening to"
},
{
"docid": "7707182",
"title": "",
"text": "(1) their testimony would have been cumulative to that of Ishi Coward and (2) their testimony would have bolstered the state’s case against Mosley on a theory of accountability by reinforcing the fact that he was across the street when the fire began. The state court’s analysis was an unreasonable application of Strickland for two reasons. First, on the limited record before the state courts, it was unreasonable to find summarily that trial counsel chose not to call Jones and Taylor as a matter of strategy. According to their affidavits, which were treated as true for purposes of the state courts’ summary disposition, Mosley’s lawyer never even interviewed them to learn what they might say. On that limited record before the state courts, the courts had to assume the lawyer was not aware of the specifics of their potential testimony. To avoid the inevitable temptation to evaluate a lawyer’s performance through the distorting lens of hindsight, Strickland establishes a deferential presumption that strategic judgments made by defense counsel are reasonable. 466 U.S. at 690-91, 104 S.Ct. 2052. But the presumption applies only if the lawyer actually exercised judgment. See id. (“strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation”). The consequences of inattention rather than reasoned strategic decisions are not entitled to the presumption of reasonableness. Rompilla v. Beard, 545 U.S. 374, 395-96, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 533-34, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). If, as Jones and Taylor claimed in their affidavits, Mosley’s lawyer never found out what their testimony would be, he could not possibly have made a reasonable professional judgment that their testimony would have been cumulative or bolstered the State’s case and could not have chosen not to call Jones and Taylor as a matter of strategy. It was also unreasonable to find that Jones’s and Taylor’s testimony would have been cumulative and bolstered the State’s case on a theory of accountability. Evidence is cumulative when it “goes to prove what has"
}
] |
213692 | count contains notice of three separate torts: malicious prosecution, abuse of legal process, and repeated or vexatious litigation about the same matter. In determining whether or not a partial summary judgment may be granted, the'court must discuss each separately. I. MALICIOUS PROSECUTION Insofar as Count 11 asserts a claim for malicious prosecution, it is clear that it cannot now be granted. There can be no judgment for damages for malicious prosecution until the civil action that forms the basis of the tort has been terminated in favor of the claimant. Prager v. El Paso Nat. Bank, 5 Cir. 1969, 417 F.2d 1111; Brown & Root, Inc. v. Big Rock Corp., 5 Cir. 1967, 383 F.2d 662; REDACTED II. ABUSE OF PROCESS I.C.B. next asserts that it is entitled to summary judgment declaring that the mere institution of the third action constituted an abuse of process and hence a tort whether or not that action has been (or is ever) terminated in favor of the plaintiffs, and without regard to want of probable cause. Since the alleged tort occurred in Mississippi, that state’s law applies in this diversity ease. It is clear that, in Mississippi, as indeed in most states, want of probable cause is an essential element of the action for malicious prosecution, but it is not necessary to establish want of probable cause to show abuse of legal process. In Edmonds v. Delta Democrat Publishing Company, 1957, | [
{
"docid": "4195799",
"title": "",
"text": "the prosecution was instituted without probable cause, he may have an action for malicious prosecution. But here again the policy that good faith litigation should not be discouraged protects even defamatory publications with a qualified privilege. This same policy permits the action for malicious prosecution only when, as the name of the action implies, the prosecution originated in motives that the law deems malignant. B. AS A MATTER OF LAW, THERE WAS NO INVASION OF PLAINTIFF’S PRIVACY Plaintiff’s claim for invasion of privacy is confined to the filing of Civil Action 66-697. The filing of a lawsuit may give rise to an action for malicious prosecution or to an action for defamation, but not to an action for invasion of privacy. Kenner v. Cousin, 1927, 163 La. 624, 112 So. 508; Young v. Courtney, 1858, 13 La.Ann. 193, 195-196; Osborn v. Moore, 1857, 12 La.Ann. 714; Cade v. Yocum & Jones, 1853, 8 La.Ann. 477, 478. Louisiana has never recognized that an invasion of privacy could occur merely by the filing of a lawsuit. Neither counsel nor the court have been able to locate a reported opinion that supports a different view. See generally, Comment, 1968, 28 La.L.Rev. 469 for a survey of the areas in which the Louisiana courts have recognized the right of privacy. This rule is grounded in Louisiana’s public policy, and does not stem simply from “blind obedience to the past.” C. HUMBLE DID NOT PROSECUTE PLAINTIFF MALICIOUSLY At common law, the privilege with respect to allegations in judicial pleadings is absolute: an utterance, however vile or baseless, is protected regardless of the motive that actuates the person who publishes it. Restatement of Torts, § 587. Hence at common law, the sole remedy with respect to improper use of the courts is malicious prosecution. This action may now be brought in most jurisdictions whether the original prosecution was civil or criminal. Restatement of Torts, §§ 653-673 (criminal), 674-680 (civil). See, e.g., Kogos v. Rittiner, La.App.1969, 228 So.2d 62, 69. Louisiana recognizes a civil action for malicious prosecution, but only when “a clear case * * *"
}
] | [
{
"docid": "13416913",
"title": "",
"text": "must be reversed. Since Mrs. Houghton was not arrested, however, summary judgment against her on this issue was appropriate. Oklahoma also recognizes a cause of action arising from abuse of process. See Neil v. Pennsylvania Life Insurance Co., 474 P.2d 961, 965 (Okl.1970). Abuse of process occurs when legal process is used for an improper purpose, to accomplish an end not lawfully obtainable, or to compel someone to do some collateral thing he could not legally be compelled to do. Id.; W. Prosser, Law of Torts § 121 (4th ed. 1971). The elements of this tort are generally articulated as an illegal or improper use of the process for an ulterior or improper purpose with resulting damage to the plaintiff. Prosser, supra; see also Tappen v. Ager, 599 F.2d 376, 379-80 (10th Cir.1979). Because a dispute exists as to whether Foremost instituted the replevin for the unlawful purpose of collecting a discharged debt, summary judgment against Mr. Houghton was improper on the abuse of process claim. Only William Houghton was discharged in bankruptcy, however. Accordingly, Mrs. Houghton has no abuse of process claim and the summary judgment against her was proper. The Houghtons’ third claim is for malicious prosecution. Under Oklahoma law, the elements of this cause of action are “(1) the bringing of the original action by the defendant; (2) its successful termination in plaintiff's favor; (3) want of probable cause to join the plaintiff; (4) malice; and (5) damages.” Young v. First State Bank, 628 P.2d 707, 709 (Okl.1981) (emphasis added). The district court based its grant of summary judgment on the undisputed fact that the underlying state court action has not been terminated in the Houghtons’ favor. Given the Houghtons’ failure to establish this essential element, summary judgment on this claim was correctly granted. The judgment against Mr. Houghton on the false imprisonment and abuse of process claims is reversed. The judgment against Mr. Houghton on the malicious prosecution claim and against Mrs. Houghton on all claims is affirmed. The case is remanded to the district court for further proceedings. . The mobile home was destroyed by"
},
{
"docid": "3309749",
"title": "",
"text": "recite the necessary elements for the malicious prosecution cause of action, as enumerated in part II.B, supra. Counts 13 and 14 are denominated “malicious use of process.” This is, however, merely another name for malicious prosecution, requiring the same proof. See Earl v. Winne, 14 N.J. 119, 134-135, 101 A.2d 535, 539-540 (1953); Prosser on Torts § 119 (4th ed. 1971); see also Jennings v. Shuman, supra, at 1216-1219 (malicious prosecution same as malicious use of process but distinct from malicious abuse of process at common law in Pennsylvania). These counts additionally assert that the defendants “made an improper, illegal and perverted use of the criminal process of the State of New Jersey and in the use of such process there existed an ulterior motive,” i. e., the collection of a private debt. The proper name for this tort is “malicious abuse of process,” which (unlike malicious use of process) is not concerned with absence of probable cause or with lack of success of the prosecution. The elements of malicious abuse of process are just two: (1) the defendant has set legal process in motion for an improper ulterior purpose, and (2) the defendant has committed a willful act in the use of process which perverts the regular conduct of the proceeding to accomplish the improper purpose. ADM Corp. v. Speedmaster Packaging Corp., 384 F.Supp. 1325, 1349 (D.N.J.1974), remanded on other grounds, 525 F.2d 662 (3d Cir. 1975); Prosser on Torts § 121 (4th ed. 1971). It is apparent that Counts 13 and 14 state a cause of action for malicious abuse of process, a tort distinct from malicious prosecution as noted above. It would be improper to dismiss a claim which raises a cognizable cause of action where that claim is merely mislabeled, in view of the command of F.R.Civ.P. 8(f) that “[a]ll pleadings shall be so construed as to do substantial justice.” See Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); 5 Wright & Miller, Federal Practice & Procedure § 1286 (1969). We also find that these causes of action for malicious prosecution"
},
{
"docid": "8987986",
"title": "",
"text": "committed,” simply wrote a report finding a mental illness and defect. The fairest reading of the presentation of this tort below and here is that it was an adjunct to the malicious prosecution claim. No factual response was made below to these Defendants’ summary judgment evidence on intentional infliction of emotional distress. The one appellate argument that she makes about this tort concerns the allegedly false affidavit presented by the Tebo brothers. That argument does not undermine the judgment on this claim, as the discrepancies between the behavior Mrs. Tebo admitted and the behavior the Tebo brothers alleged are only in some of the details. On this record, we need not reach the question of whether the act of intentionally seeking to commit a person based upon knowingly false allegations in order to take her property could form the basis of an intentional infliction of emotional distress claim. We affirm summary judgment as to intentional infliction of emotional distress. The tort of malicious prosecution is where Mrs. Tebo has given her factual and legal focus both below and here. We examine that next. 3. Malicious Prosecution by the Tebo Brothers The next claim we examine is that for malicious prosecution, which is an appropriate legal rubric for her claim that the commitment proceedings were brought for improper reasons and through false affidavits. In Mississippi, this tort has six elements: “(1) The institution of a criminal [or civil] proceeding; (2) by, or at the insistence of, the defendant; (3) the termination of such proceedings in plaintiffs favor; (4) malice in instituting the proceedings; (5) want of probable cause in the institution of the proceedings; (6) the suffering of injury or damage as a result of the prosecution.” Parker v. Miss. Game & Fish Comm’n, 555 So.2d 725, 728 (Miss.1989); see also Condere Corp. v. Moon, 880 So.2d 1038, 1042 (Miss.2004) (each element must be shown by a preponderance of evidence). Though the parties do not discuss these elements systematically, there appears to be no dispute as to the first three elements. Mrs. Tebo arguably alleges injuries sufficient to raise an issue"
},
{
"docid": "20034619",
"title": "",
"text": "are the types of suit rightly adjudged “exceptional”; for in a battle of equals each contestant can bear his own litigation costs without impairing competition. When the plaintiff is the oppressor, the concept of abuse of process provides a helpful characterization of his conduct. Unlike malicious prosecution, which involves filing a baseless suit to harass or intimidate an antagonist, abuse of process is the use of the litigation process for an improper purpose, whether or not the claim is colorable. “The gist of the abuse of process tort is said to be misuse of legal process primarily to accomplish a purpose for which it was not designed, usually to compel the victim to yield on some matter not involved in the suit---- If the plaintiff can show instigation of a suit for an improper purpose without probable cause and with a termination favorable to the now plaintiff, she has a malicious prosecution or a wrongful litigation claim, not a claim for abuse of process---- [T]he abuse of process claim permits the plaintiff to recover without showing the traditional want of probable cause for the original suit and without showing termination of that suit.” 2 Dan B. Dobbs, The Law of Torts § 438 (2001). Abuse of process is a prime example of litigating in bad faith. The term “abuse of process” is not used to describe behavior by defendants. Id. It has been said that “while it is obvious that the torts of abuse of process and malicious prosecution are prevalent and damaging to both innocent defendants as well as the judicial process, it is not so obvious where the line is that separates an attorney’s zealous advocacy from his tortious interference with the litigation processes.” Leah J. Pollema, “Beyond the Bounds of Zealous Advocacy: The Prevalence of Abusive Litigation in Family Law and the Need for Tort Remedies,” 75 U. Mo.-Kan. City L.Rev. 1107, 1117 (2007). But the need to draw that line is the same whether the plaintiff is attacking or the defendant is defending. If a defendant’s trademark infringement or false advertising is blatant, his insistence on"
},
{
"docid": "23228324",
"title": "",
"text": "in favor of the plaintiff, and all the facts pleaded in the complaint must be taken as true. See Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir.1986). The district court may not dis miss a complaint under rule 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). This standard of review under rule 12(b)(6) has been summarized as follows: “The question therefore is whether, in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief.” 5 Chaeles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 601 (1969). B. Abuse of Process and Malicious Prosecution Claims Appellants argue that the district court erred when it dismissed their abuse of process and malicious prosecution claims under the discretionary function exception to the FTCA. The government urges us to affirm on the alternative ground that, as a matter of law, Appellants failed to state malicious prosecution and abuse of process claims. See Gulf Island, TV v. Blue Streak Marine, Inc., 940 F.2d 948, 952 (5th Cir.1991)(In reviewing the district court’s order, the appellate court can affirm on any ground presented to the district court, even though it may not have formed the basis for that court’s decision.) 1. Malicious Prosecution The FTCA applies state law to determine the government’s liability for torts within the FTCA waiver of immunity. See 28 U.S.C. §§ 1346(b), 2674. Under Texas law, there are seven elements for a malicious prosecution claim: (1) commencement of a criminal prosecution against the plaintiff; (2) causation (initiation or procurement) of the action by the defendant; (3) termination of the prosecm tion in the plaintiffs favor; (4) the plaintiffs innocence; (5) the absence of probable cause for the proceedings; (6) malice in filing the charge; and (7) damage to the plaintiff. See Richey v. Brookshire Grocery Co., 952 S.W.2d 515,"
},
{
"docid": "8462565",
"title": "",
"text": "what he calls a constitutional claim for abuse of process. He assumes, without explaining, that this claim is cognizable under § 1983, citing both the Fourth and Fourteenth Amendments. The only authority he cites for this proposition is Julian v. Hanna, 732 F.3d 842 (7th Cir.2013), which dealt only with a malicious prosecution claim. Assuming abuse of process is cognizable under § 1983, we would look to state law to determine the elements of the claim, as we do with malicious prosecution claims. Cf. Washington v. Summerville, 127 F.3d 552, 558-59 (7th Cir.1997). In Indiana, the elements of abuse of process are “(1) an ulterior purpose, and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding.” Lindsay v. Jenkins, 574 N.E.2d 324, 326 (Ind.App.1991); see also Golden Years Homestead, Inc. v. Buckland, 557 F.3d 457, 464 (7th Cir.2009) (Indiana law). We have questions about the constitutional foundation for Hart’s claim, though. Abuse of process, unlike malicious prosecution, typically focuses on the actions of those prosecuting the case after legal process has been initiated (i.e., after probable cause has been established). See Nightingale Home Healthcare, Inc. v. Anodyne Therapy, LLC, 626 F.3d 958, 963 (7th Cir.2010) (explaining difference between malicious prosecution and abuse of process); see also Dan B. Dobbs et al., The Law of Torts § 594 (2d ed. 2015) (“[T]he abuse of process claim permits the plaintiff to recover without showing the traditional want of probable cause for the original suit and without showing termination of that suit.”); Restatement (Second) of Torts § 682, cmt. a (1977) (“The gravamen of the misconduct ... is not the wrongful procurement of legal process or the wrongful initiation of criminal or civil proceedings; it is the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to accomplish.”). It is not clear to us that abuse of process is cognizable as a Fourth Amendment claim. Abuse of process is an awkward fit for the Fourth Amendment for two reasons. First, the protections of the"
},
{
"docid": "12434158",
"title": "",
"text": "humiliation and embarrassment by instituting an earlier suit. The court held that the claim could not succeed because abuse of process does not lie for the wrongful bringing of-an action. Plaintiff in that case alleged that the suit was brought against him without a probable basis. The court concluded that if the Plaintiff had alleged that the suit was brought with a probable basis but that-the process instituted was somehow “perverted,” Plaintiffs abuse of process claim would have had merit. The court further concluded that, at most, Plaintiff had a claim for malicious prosecution. In this regard, the court cited Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A, supra, in which the Ohio Supreme Court stated: The tort of malicious prosecution, whether criminal or civil, provides a remedy when a proceeding is instituted without probable cause. However, it does not provide a remedy for a related, yet different situation. The tort action termed “abuse of process” has developed for “cases in which legal procedure has been set in motion in proper form, with probable cause, and even with ultimate success, but nevertheless has been perverted to accomplish an ulterior purpose for which it was not designed.” Prosser & Keeton, The Law of Torts (5 Ed.1984) 897, Section 121. We accept the proposition that the tort of malicious civil prosecution does not provide a remedy for a situation in which process is used to accomplish an improper ulterior purpose. Such a situation occurs when there is an “act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process ***.” Id. at 898. Accordingly, we recognize the tort of abuse of process as a distinct tort in its own right, distinguish able from the tort of malicious civil prosecution. Yaklevich, 68 Ohio St.3d at 297, 626 N.E.2d 115. Similar to the Plaintiff in Kremer, Plaintiff in this case simply alleges that Tectum initiated its counterclaim to intimidate Plaintiff into settling. Plaintiff makes no allegation that Tectum’s counterclaim is brought with probable cause but that Tectum somehow perverted the process by attempting to"
},
{
"docid": "1423222",
"title": "",
"text": "Restatement 2d, supra, § 652H. I conclude that the tort of intrusion is the appropriate analogue to the civil rights claims based on unlawful searches of property. The final aspect of plaintiffs’ civil rights claims consists of the allegations that Rozanski and Kenneth and Joseph Kedra were charged with crimes “without just or probable cause.” The civil rights violation lies in deprivation of the charged parties’ liberty without due process of law. See Jennings v. Shuman, 567 F.2d 1213, 1220 (3d Cir. 1977). The type of injury suffered — wrongful subjection to litigation — is analogous to that suffered as a result of two common law torts, abuse of process and malicious use of process (known as malicious prosecution in cases where, as here, the process used was criminal). See generally Restatement 2d, supra, §§ 653-682. Recently, in Jennings, supra, at 1216-19, the Court of Appeals surveyed Pennsylvania law with respect to these torts and explained the distinction to be relied upon in determining state law analogies to civil rights actions. As the Court stated, the key factor in an abuse of process action is the use to which the process is put. If process is used to accomplish a purpose for which it is not intended, e. g., to accomplish extortion, abuse of process applies. On the other hand, the focus in a malicious prosecution action is the justification proffered as a basis for issuance of the process. If prosecution is instituted without probable cause and merely on the basis of untrue statements, the accused may assert an action for malicious prosecution if the proceedings terminate in his favor. The allegations in this case are that the defendants filed criminal charges against Rozanski and Joseph and Kenneth Kedra “without just or probable cause” and that these plaintiffs were acquitted of the charges. The focus of the averments thus is on the lack of proper justification for filing of the charges, and this aspect of the case therefore is most closely analogous to malicious prosecution. The relief requested, damages, is consistent with selection of this tort. See Restatement 2d, supra,"
},
{
"docid": "5541263",
"title": "",
"text": "*31 (D.N.M. Sept. 30, 2008)(Browning, J.)(“A § 1983 malicious-prosecution claim does not mature until the plaintiffs conviction has been invalidated.”). J. Mata’s jury trial in state district court ended in his favor on July 17, 2006, with an acquittal. His Fourth-Amendment malicious-prosecution claims, therefore, did not accrue until that date, which is more than a year after J. Mata entered into the settlement agreement and release. Indeed, Anderson concedes that the November 2005 settlement did not release J. Mata’s Fourth-Amendment claims. See Motion at 21. The Court, therefore, will not grant Anderson summary judgment on the Fourth-Amendment malicious-prosecution claims on these grounds. E. J. MATA’S STATE-LAW MALICIOUS-ABUSE-OF-PROCESS CLAIMS ACCRUED BEFORE NOVEMBER 2005. Anderson contends that J. Mata’s state tort malicious-abuse-of process claims accrued once J. Mata learned of the allegedly improper criminal charges filed against him. J. Mata contends that some claims accrued when J. Mata was acquitted in the state district court. To assert a claim of malicious-abuse-of-process, Mata must show: (i) the initiation of judicial proceedings against him by Anderson; (ii) an act by Anderson in the use of process other than such as would be proper in the regular prosecution of the claim; (iii) a primary motive by Anderson in misusing the process to accomplish an illegitimate end; and (iv) damages. See DeVaney v. Thriftway Marketing Corp., 124 N.M. at 518, 953 P.2d at 283. “[P]rior favorable termination is not an element of the malicious abuse of process tort, as it was for the former tort of malicious prosecution.” Fleetwood Retail Corp. v. LeDoux, 142 N.M. at 154, 164 P.3d at 35. A cause of action for malicious abuse of process accrues when a party knows or has reason to know of the injury that constitutes the basis of the action. A cause of action for malicious-abuse-of-process accrues immediately upon the improper use of process. See McDow v. Gonzales, No. CIV 07-1266, 2008 WL 5979833, at *14 n. 5, 2008 U.S. Dist. LEXIS 108674, at *44 n. 5 (D.N.M. Sept. 30, 2008)(Browning, J.)(“In New Mexico, a state-law claim for malicious abuse of process does not require a"
},
{
"docid": "5541265",
"title": "",
"text": "favorable termination before a plaintiff brings a claim, and the state statute of limitations begins to run as soon as the plaintiff knows of the facts on which he or she is basing the claim.”); Harvey v. Pincus, 549 F.Supp. at 340 (“[A] plaintiff in a malicious abuse [of process] case need not show that the prior proceedings were terminated in his or her favor. The cause of action accrues immediately upon the improper use of process.”); Norton v. Town of Islip, 2009 WL 804702, at **9-10, 2009 U.S. Dist. LEXIS 27565, at **28-30 (stating that the lack of a termination requirement is what distinguishes a claim for malicious-abuse-of-process from one for malicious-prosecution and thus a malicious-abuse-of-process claim accrues as soon as criminal action is commenced). The accrual of the claim immediately upon improper use of process is in line with when similar constitutional torts accrue — when a party knows or has reason to know of the injury that constitutes the basis of the action. In this case, J. Mata’s malicious-abuse-of-process claim accrued when Anderson filed criminal charges against him, allegedly without probable cause. Upon receiving the criminal complaint in January 2005, J. Mata was aware of Anderson’s allegedly malicious motives. In the hearing, Mr. Montoya stated that the “greatest telltale sign of malicious intent” and “malicious motive” is Anderson’s Statement of Probable Cause bearing Anderson’s signature. Tr. at 25:14-17 (Montoya); Id. at 31:19-21 (Montoya). J. Mata has not presented evidence of subsequent abuse of process separate from the initiation of the criminal actions by Anderson. The Court finds, therefore, that, because J. Mata has asserted a claim of malicious-abuse-of-process that accrued in January 2005, he released these claims when he entered into the November 2005 settlement agreement. The Court, thus, will grant Anderson’s motion for summary judgment on the state-tort claims. II. THE COURT CANNOT DETERMINE AT THIS TIME, AS A MATTER OF LAW, THAT ANDERSON’S LAWSUIT AGAINST I. MATA WAS BASED ON PROBABLE CAUSE. Probable cause at least presupposes that there be reasonable and particularized grounds for belief that a suspect is guilty of some crime. See"
},
{
"docid": "16764645",
"title": "",
"text": "Defendants instituted foreclosure actions without reasonable hope of success. Indeed, “ ‘abuse of process differs from malicious prosecution in that the former connotes the use of process properly initiated for improper purposes, while the latter relates to the malicious initiation of a lawsuit which one has no reasonable chance of winning.’ ” Clermont Environmental Reclamation Co. v. Hancock, 16 Ohio App.3d 9, 474 N.E.2d 357, 362 (1984); see also Avco Delta Corp. v. Walker, 22 Ohio App.2d 61, 258 N.E.2d 254, 257 (1969) (“the malicious abuse of process is the employment of a process in a manner not contemplated by law, or to obtain an object which such a process is not intended by law to effect”). Here, rather than using the lawsuit to obtain a collateral advantage, the Plaintiffs allege that the Defendant filed the appropriate type of action for their ultimate goal—foreclosure of a home—but filed that action without proper probable cause. See Havens-Tobias v. Eagle, 2003 WL 1601461, at *5 (Ohio Ct. App., Mar. 28, 2003). Accordingly, since the Plaintiffs’ allegations do not make out a claim for abuse of process, the Court GRANTS the Defendant’s motion to dismiss on this claim. III.D Malicious Prosecution (Count k) The Plaintiffs also assert a claim of malicious civil prosecution. [Doc. 1-1 at 10.] To assert a claim for malicious prosecution under Ohio law, a plaintiff must prove: “(1) malicious institution of prior proceedings against the plaintiff by defendant ... (2) lack of probable cause for the filing of the prior lawsuit, ... (3) termination of the prior proceedings in plaintiffs favor, ... and (4) seizure of plaintiffs person or property during the course of the prior proceedings.” Robb, 662 N.E.2d at 13 (citing Crawford v. Euclid Nat’l Bank, 19 Ohio St.3d 135, 483 N.E.2d 1168, 1171 (1985)). Under the first element, malicious institution of prior proceeding, the Court finds that the Plaintiffs’ allegation satisfy this element. The Plaintiff alleges that the Defendant filed the foreclosure actions with malice since the Defendant knew that its clients did not have proper standing to sue. [Doc. 1-1 at 2.] This allegation, if"
},
{
"docid": "20077608",
"title": "",
"text": "arrested on valid warrant naming him, action for malicious prosecution is only remedy available under New York law); cf. Feinberg v. Sak’s & Co., 83 A.D.2d 952, 443 N.Y.S.2d 26, 27 (1981) (analysis limited to false arrest and malicious prosecution); Lawrence v. Police Dept. of the City of Syracuse, 81 A.D.2d 1006, 440 N.Y.S.2d 105, aff'd, 55 N.Y.2d 737, 431 N.Y.S.2d 639, 431 N.E.2d 639 (1981); Rosario, 605 F.2d at 1248 (defendant’s liability based on knowledge of lack of probable cause); Boose, 421 N.Y.2d at 747 (action for malicious prosecution available to test error of arresting officer); see generally Broughton, 335 N.E.2d at 310 (distinguishing false arrest from malicious prosecution or abuse of process). To recover on a claim of malicious prosecution under New York law, plaintiff must establish (1) that defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in his favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted with actual malice. Martin v. City of Albany, 42 N.Y.2d 13, 16, 364 N.E.2d 1304, 1307, 396 N.Y.S.2d 612, 614 (1977); Russo v. State of New York, 672 F.2d 1014, 1018 (2d Cir.1982); cf. Restatement (2d) Torts, § 653 (1976) (purpose other than that of bringing offender to justice). In an action for malicious prosecution, plaintiff has the burden of pleading and proving want of probable cause. See, e.g., Broughton, 335 N.E.2d at 314; Restatement (2d) Torts, § 672(1)(c) (1976). Defendant maintains that summary judgment must be granted because at all times up until the prosecution of plaintiff was withdrawn, the agents had probable cause to believe he committed the robbery. Where the underlying facts are not in dispute, whether the set of facts within the knowledge of the agents constituted probable cause is a question of law. Restatement (2d) Torts, § 673(1)(c) (1976); see Munoz v. City of New York, 18 N.Y.2d 6, 271 N.Y.S.2d 645, 218 N.E.2d 527, 530 (1966) (where no dispute about the facts which led to the prosecution or the inferences to be drawn by a reasonable"
},
{
"docid": "22291279",
"title": "",
"text": "a state district court. Proceedings on the charge against plaintiff have occurred at both levels. Plaintiff presented no evidence that either prosecution was in bad faith. Presumedly, plaintiff would argue the decision to prosecute must have been made on the basis of the allegedly false police reports (discussed infra, Part III, A, 4) and is somehow tainted thereby. As no evidence was presented showing a history of illegal arrests or improper activities by any of the three defendant officers or other reason to have questioned seriously their credibility, reliance on their reports would not constitute bad faith prosecution; cf. Munson v. Gilliam, 543 F.2d 48, 53 (8th Cir. 1976) (noting the very limited circumstances under which a prosecutor’s failure to investigate both sides of a matter could be characterized as bad faith). Nor would the failure to dismiss the charge after plaintiffs successful state tort action reflect on the motives of the prosecutor. The state tort action established that McElroy assaulted and/or battered plaintiff; it did not determine whether or not plaintiff had been driving too fast for conditions. . As plaintiff has not specifically asked that the report be expunged, we have no occasion to decide whether he might ever be entitled to such relief in the context of a section 1983 suit. . In order to state a tort cause of action for malicious prosecution, a plaintiff must generally allege criminal proceedings were initiated against him without probable cause and for an improper purpose and were terminated in his favor. 1 F. Harper & F. James, The Law of Torts 300 (1956). As the driving too fast for conditions charge is still pending, plaintiff does not characterize defendants’ actions as malicious prosecution but rather describes them as an abuse of process. An abuse of process “is committed when the actor employs legal process in a manner technically correct, but for a wrongful and malicious propose to attain an unjustifiable end or an object which it was not the purpose of the particular process employed to effect.” Id., 330. It is not necessary that the action have terminated favorably"
},
{
"docid": "5608699",
"title": "",
"text": "c. Plaintiff can not maintain a Section 1983 claim for “abuse of process/malicious prosecution” against defendants for initiating a grand jury investigation of his involvement in an allegedly unlawful abandoned car scheme because he has not identified any facts establishing any process, such as an arrest or the filing of criminal charges, that deprived him of a constitutionally protected liberty interest without due process of law. Purieelli asserts an “abuse of process/malicious prosecution” claim against the defendants for convening a grand jury “for the sham purpose of investigating a ‘chop shop’ operation which Defendant Hughes alleged was being run by the plaintiff.” (Puri-celli’s response to Hughes’ motion for summary judgment at 11.) As I stated in Gamer at 22-24: Plaintiff is correct that viable actions for malicious prosecution and malicious abuse of process can be maintained under Section 1983. See Losch v. Borough of Parkesburg, 736 F.2d 903, 907-08 (3rd Cir.1984); Jennings v. Shuman, 567 F.2d 1213, 1220 (3rd Cir.1977); Brown v. Johnston, 675 F.Supp. 287 (W.D.Pa.1987). “State tort claims do not necessarily constitute a claim under § 1983 but state law torts for false arrest, abuse of process, and malicious prosecution may under some circumstances also provide the basis for a claim under the section.” Mines v. Kahle, 557 F.Supp. 1030, 1039 n. 5 (W.D.Pa.1983) (The Third Circuit’s decision in Kulwicki v. Dawson, 969 F.2d 1454 (3rd Cir.1992), disagreed with the Mines decision on the issue of absolute immunity.) One commentator has noted, “[b]y now it is abundantly clear that common law torts committed by local governments or government employees do not, on that basis alone, constitute Fourteenth Amendment violations actionable under § 1983. Thus, strictly speaking, it is incorrect to talk about a malicious prosecution or abuse of process action premised solely on state tort law elements. Rather, what must be identified in every § 1983 case, including these, is the constitutional provision allegedly violated.” S. Nahmod, Civil Rights and Civil Liberties Litigation § 3.15 (3rd ed. 1991). Plaintiff has correctly cited Losch v. Borough of Parkesburg, 736 F.2d 903 (3rd Cir.1984), as authority that a malicious prosecution"
},
{
"docid": "11492765",
"title": "",
"text": "led counsel to believe that what had been done thus far was enough to preserve the issue for post-judgment review. Indeed, the colloquy in chambers was the type of exchange that one would expect to follow a motion for judgment as a matter of law on the abuse of process claim. Cf. Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968, 971-72 (1st Cir.1969). In these circumstances, we conclude that the legal sufficiency of the abuse of process claim warrants appellate consideration. We thus turn to the substantive inquiry, which is governed by a de novo standard of review. Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir.1994). It is not surprising that the court and parties were uncertain about how to characterize Simon’s claim based on the New York litigation. The torts of abuse of process and malicious prosecution frequently are confused because of their close relationship, see, e.g., Lambert v. Breton, 127 Me. 510, 514, 144 A. 864 (1929); Board of Education of Farmingdale Union Free Sch. Dist. v. Farmingdale Classroom Teachers Ass’n, 38 N.Y.2d 397, 400, 343 N.E.2d 278, 280-81, 380 N.Y.S.2d 635, 639-40 (1975); Note, “Abuse of Process,” 13 Clev.-Mar.L.Rev. 163, 163 (1964) (“Abuse”); Note, “Torts — Abuse of Process Defined,” 28 Ark.L.Rev. 388 (1974) (“Defined”), and abuse of process has been described as “one of the most obscure torts in the law,” see Note, “The Nature and Limitations of the Remedy Available to the Victim of a Misuse of the Legal Process: The Tort of Abuse of Process,” 2 Val.U.L.Rev. 129, 129 (1967) (“Tort of Abuse”). To establish a claim for malicious prosecution, a party must show that the challenged litigation was initiated without probable cause and with malice, and that it terminated in the plaintiff’s favor. See, e.g., Nadeau v. State, 395 A.2d 107, 116 (Me.1978). The two basic elements of abuse of process are a bad motive, and the use of a legal process for an improper, collateral objective. See, e.g., id. at 117. The difference between the two often is explained as a matter of timing and scope: malicious prosecution"
},
{
"docid": "3105687",
"title": "",
"text": "of an abuse of process claim are (1) the defendant used “process” (2) for an ulterior or illegitimate purpose (3) resulting in damage. Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636, 925 N.E.2d 513 (2010). “[P]robable cause is irrelevant to an abuse of process claim.” Gutierrez v. Massachusetts Bay Transp. Auth., 437 Mass. 396, 407-08, 772 N.E.2d 552 (2002). “The gravamen of that tort is not the wrongfulness of the prosecution, but some extortionate perversion of lawfully initiated process to illegitimate ends.” Heck, 512 U.S. at 486 n.5, 114 S.Ct. 2364. Success on an abuse. of process claim therefore does not require a plaintiff to impugn the validity the underlying criminal proceedings. Id. For that reason, plaintiffs abuse of process claim is not barred by Heck. Because defendant has moved for summary judgment on the abuse-of process claim only on Z/ec/c-relat-ed 'grounds, that motion will be denied as to Count 9. hi. Malicious Prosecution Claim (Count 10) Count 10 alleges a claim for malicious prosecution. The elements of a common-law cause of action for malicious prosecution are “(1) the commencement or continuation of a criminal proceeding against the eventual plaintiff at the behest of the eventual defendant; (2) the termination of the proceeding in favor of the accused; (3) an absence of probable cause for the charges; and (4) actual malice.” Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001). Because success on his malicious-prosecution claim would require plaintiff to show that his arrest lacked probable cause, that claim is barred. Defendant’s motion for summary judgment will therefore be granted as to Count 10. IY. Conclusion For the foregoing reasons, the motion of defendant John Fallon to strike plaintiffs declaration is DENIED as moot and the motions of defendants William Lewis and John Fallon for summary judgment are GRANTED in part and DENIED in part, as. follows; 1.As to Count 1 (§ 1983), summary judgment will be'granted as to the claims for false arrest and retaliatory arrest, but denied as to the unreasonable search claim; 2. As to Count 2 (MCRA), summary judgment will be granted as-"
},
{
"docid": "3006012",
"title": "",
"text": "a claim. The claim under Count Five for malicious prosecution must also be dismissed with respect to Morgan. An action for malicious prosecution requires that the plaintiff prove: (1) that a prosecution was commenced against him; (2) that it was instigated by the defendant; (3) that it was malicious; (4) that it was legally and finally-terminated in the plaintiff’s favor; (5) that it was without probable cause; and (6) that it caused the plaintiff injury. See Wynne v. Rosen, 391 Mass. 797, 798, 464 N.E.2d 1348, 1350 (1984) (discussing tort of malicious prosecution). The complaint in this action sets forth an allegation that defendant Bohn, maliciously and without probable cause, charged Gross in a misdemeanor complaint with disorderly conduct. (Docket Entry # 1, ¶ 47). The complaint does not include an allegation of such a charge by Morgan. The plaintiffs have, therefore, failed to plead the elements of the tort of malicious prosecution with respect to the defendant Morgan, and that claim against Morgan must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). The same argument and consequences apply to the claim of abuse of process. In summary, with respect to claims alleged against the Morgan in Count Five of the complaint, it is the recommendation of this court that the following claims be dismissed as against the defendant Morgan pursuant to Fed.R.Civ.P. 12(b)(6): malicious prosecution; abuse of process; conspiracy; and negligence. D. Count 6 Defendant Morgan also moved for dismissal of Count Six, a claim under Mass.Gen.L. eh. 12 § 111. A claim under Mass.Gen.L. ch. 12, § 111 requires an allegation that the defendant “interfered by threat, intimidation, or coercion.” Id. A plaintiff is not entitled to recover under this statute merely by demonstrating a federal constitutional claim. See Longval v. Commissioner of Correction, 404 Mass. 325, 333, 535 N.E.2d 588, 593 (1989) (no coercion within meaning of Massachusetts statute); Bally v. Northeastern University, 403 Mass. 713, 717-20, 532 N.E.2d 49, 51-53 (1989) (no violation because no finding of threats, intimidation or coercion). It is clear, however, that “the remedy provided in [§ 111] ... was intended to be coextensive"
},
{
"docid": "23385966",
"title": "",
"text": "respect to Mississippi’s long-arm statute a tort occurs where and when the actual injury takes place, not at the place of the economic consequences of the injury.”); Rittenhouse, 832 F.2d at 1384 (same); Estate of Portnoy v. Cessna Aircraft Co., 730 F.2d 286, 290 (5th Cir.1984) (same). At the outset, we reject Allred’s reliance on Hyde Construction Co. v. Koehring, 321 F.Supp. 1193 (S.D.Miss.1969), for the proposition that “service of process on Allred in Mississippi constituted the commission of a tort in Mississippi for purposes of satisfying the requirements of the Mississippi long-arm statute.” Although the district court in Hyde, examining section 13-3-57’s statutory predecessor, acknowledged that the abuse of process tort must “accrue” within the geographical limits of Mississippi and so found, it nevertheless repeatedly emphasized what we think to have been the determinative factor in its analysis: the defendant in the abuse of process action had “domesticated itself or qualified to' do business within the State of Mississippi having appointed ... [a] registered agent for service of process between [all relevant dates].” Hyde, 321 F.Supp. at 1210 (noting that the defendant corporation “was authorized to transact business in Mississippi”). Allred neither argued nor presented evidence that any defendant had any contact whatsoever with Mississippi other than the service of process by certified mail from Dallas, Texas to his Jackson, Mississippi law office. To the extent that Hyde supports Allred’s questionable proposition, it must be limited to the case of a person or entity subject to the general jurisdiction of the Mississippi courts. A. Malicious Prosecution In Mississippi, malicious prosecution requires: “(1) the institution or continuation of original judicial proceedings, either criminal or civil; (2) by, or at the instance of the defendants; (3) the termination of such proceedings in plaintiffs favor; (4) malice in instituting the proceedings; (5) want of probable cause in the proceedings; and (6) the suffering of damages as a result of the action or prosecution complained of.” Mississippi Road Supply Co. v. Zurich-American Ins. Co., 501 So.2d 412, 414 (Miss.1987) (citing Harvill v. Tabor, 240 Miss. 750, 128 So.2d 863, 864 (1961)). Allred does"
},
{
"docid": "22539424",
"title": "",
"text": "only to the tort of malicious prosecution but to the tort of abuse of process as well, see Wyatt v. Cole, supra, at 164 (calling these two actions “the most closely analogous torts” to § 1983), the latter making it “unnecessary for the plaintiff to prove that the proceeding has terminated in his favor,” Prosser and Keeton 897. The Court suggests that the tort of malicious prosecution provides “the closest analogy to claims of the type considered here” because “it permits damages for confinement imposed pursuant to legal process.” Ante, at 484. But the same appears to be true for the tort of abuse of process. See Restatement (Second) of Torts §682, Illustration 1 (1977) (indicating that a person who, by causing a court to issue a writ of capias against someone to whom he lent money, caused the borrower to be “arrested .. . and kept in prison” is properly held liable for the arrest and imprisonment if the lender’s purpose in using legal process was wrongful (and regardless of favorable termination or want of probable cause)). Furthermore, even if the tort of malicious prosecution were today marginally more analogous than other torts to the type of § 1983 claim in the class of cases before us (because it alone may permit damages for unlawful conviction or postconviction confinement, see n. 3, infra), the Court overlooks a significant historical incongruity that calls into question the utility of the analogy to the tort of malicious prosecution insofar as it is used exclusively to determine the scope of §1983: the damages sought in the type of §1983 claim involved here, damages for unlawful conviction or post-conviction confinement, were not available at all in an action for malicious prosecution at the time of § 1983’s enactment. A defendant’s conviction, under Reconstruction-era common law, dissolved his claim for malicious prosecution because the conviction was regarded as irrebuttable evidence that the prosecution never lacked probable cause. See T. Cooley, Law of Torts 185 (1879) (“If the defendant is convicted in the first instance and appeals, and is acquitted in the appellate court, the conviction"
},
{
"docid": "22539423",
"title": "",
"text": "intended to bring him to justice. Absent an independent statutory basis for doing so, importing into §1983 the malicious-prosecution tort’s favorable-termination requirement but not its probable-cause requirement would be particularly odd since it is from the latter that the former derives. See Prosser and Keeton 874 (“The requirement that the criminal prosecution terminate in favor of the malicious prosecution plaintiff ... is primarily important not as an independent element of the malicious prosecution action but only for what it shows about probable cause or guilt-in-fact”); M. Bigelow, Leading Cases on Law of Torts 196 (1875) (“The action for a malicious prosecution cannot be maintained until the prosecution has terminated; for otherwise the plaintiff might obtain judgment in the one case and yet be convicted in the other, which would of course disprove the averment of a want of probable cause”). If, in addition, the common law were the master of statutory analysis, not the servant (to switch metaphors), we would find ourselves with two masters to contend with here, for we would be subject not only to the tort of malicious prosecution but to the tort of abuse of process as well, see Wyatt v. Cole, supra, at 164 (calling these two actions “the most closely analogous torts” to § 1983), the latter making it “unnecessary for the plaintiff to prove that the proceeding has terminated in his favor,” Prosser and Keeton 897. The Court suggests that the tort of malicious prosecution provides “the closest analogy to claims of the type considered here” because “it permits damages for confinement imposed pursuant to legal process.” Ante, at 484. But the same appears to be true for the tort of abuse of process. See Restatement (Second) of Torts §682, Illustration 1 (1977) (indicating that a person who, by causing a court to issue a writ of capias against someone to whom he lent money, caused the borrower to be “arrested .. . and kept in prison” is properly held liable for the arrest and imprisonment if the lender’s purpose in using legal process was wrongful (and regardless of favorable termination or want"
}
] |
679872 | Whitaker, Judge, delivered the opinion of the court: In REDACTED 295) to the unique situation of firefighters who were required to stay at their posts of duty on shifts of 24 hours continuously. The employees had entered into a contract with the Alaska Railroad whereunder they were paid for only 16 hours out of the 24, the other 8 hours being presumably devoted to sleeping and eating. But the employees, in derogation of their contract, sued, saying they were entitled to be paid for the full 24 hours under the Federal Employees Pay Act of 1945. We upheld the contract, saying that we thought it was a reasonable application of the Act to their peculiar situation. | [
{
"docid": "18945014",
"title": "",
"text": "Whitaker, Judge, delivered the opinion of the court: Plaintiffs were fire fighters employed by the Alaska Bail-road under a contract that required their presence at the fire house every other day for the full 24 hours. The contract provided: * * * The first sixty (60) hours on the job, less twenty (20) hours for sleeping and eating, will be regarded as the basic 40-hour work week. * * * The entire period of twenty-four (24) hours on duty, less time allowed for sleep and meals will be used in computing the total number of regularly scheduled hours per week for overtime pay purposes. Two-thirds ('%) of each hour on the job will represent time in pay status and one-third (%) as time out for sleeping and eating. During the twenty-four (24) hours on duty, employees are required to remain at the fire station and respond immediately to emergencies, day or night. During off duty period, employees are not required to remain in the fire hall. Plaintiffs have been paid for 40 hours a week regular time and for 16 hours overtime. They claim they are entitled to pay for 44 hours overtime and 40 hours regular time. They are not entitled to this under the contract, but they say they are entitled to it under section 23 of the Act of March 28,1934 (48 Stat. 522) and under the Federal Employees Pay Act of 1945 (59 Stat. 296). The pertinent part of section 23 of the 1934 Act is the proviso, which reads as follows: * * * Provided, That the regular hours of labor shall not be more than forty per week; and all overtime shall be compensated for at the rate of not less than time and one-half. The same provision is contained in the 1945 Act. Plaintiffs say that where the pay of an office or position is fixed by statute, a government employee is entitled to this pay notwithstanding his agreement to receive a lesser pay. They then say that they were on duty every other day for 24 hours a day, and that, under"
}
] | [
{
"docid": "18945016",
"title": "",
"text": "the statute, they are entitled to compensation for the full 24 hours. It is agreed that plaintiffs were subject to call at any time during the 24 hours, but it is admitted that they rarely, if ever, actually worked 24 hours in any one day. Ordinarily, during the 24 hours, they labored 8 hours; for another 8 hours they were in a stand-by status, during which they were required to do no labor, but were free to play cards, dominoes, listen to the radio, or do anything they pleased, so long as they stood ready to respond if they were called upon. For these 16 hours they were paid; for a part they were paid straight time, and for the rest, time and a half. They were not paid for the other 8 hours, because this was supposed to be devoted to sleeping and eating. Under the contract the first 60 hours of a week were supposed to represent the basic 40-hour week, 20 hours being regarded as time devoted to sleeping and eating. If more than 60 hours were required of the employee, two-thirds of it were compensable at time and a half, and one-third was supposed to be spent in eating and sleeping. Actually, as stated, 56 hours a week of labor and stand-by time was demanded, and they were compensated accordingly. The petition does not allege that these employees put in more than 56 hours a week of labor and stand-by time, for which they were paid, if the time spent in eating and sleeping is not to be counted as stand-by time. It does not allege that 28 hours a week, for which they claim additional compensation, were not available to them for eating and sleeping. If they were, it is difficult to see how they can claim compensation therefor. An employer does not have to pay an employee for the time he spends in bed or at the dining table. It may be that after the employee went to bed he was called to fight a fire, but if other time during the week was"
},
{
"docid": "18945017",
"title": "",
"text": "more than 60 hours were required of the employee, two-thirds of it were compensable at time and a half, and one-third was supposed to be spent in eating and sleeping. Actually, as stated, 56 hours a week of labor and stand-by time was demanded, and they were compensated accordingly. The petition does not allege that these employees put in more than 56 hours a week of labor and stand-by time, for which they were paid, if the time spent in eating and sleeping is not to be counted as stand-by time. It does not allege that 28 hours a week, for which they claim additional compensation, were not available to them for eating and sleeping. If they were, it is difficult to see how they can claim compensation therefor. An employer does not have to pay an employee for the time he spends in bed or at the dining table. It may be that after the employee went to bed he was called to fight a fire, but if other time during the week was made available to him for sleeping and eaiting, so that during the week a total of 28 hours were so available, we are unable to see how the employee had spent more than 56 hours during the week at labor and in a compensable stand-by status. All that the Act requires is that an employee be paid regular time for 40 hours a week, and that he shall be paid time and a half for hours of labor in excess of 40 hours. Time spent in eating and sleeping are not spent in labor. Since it is not alleged that plaintiffs were deprived of the requisite number of hours for sleeping and eating, and since it appears that they have been paid for all time spent except in eating and sleeping, it seems to us that the 1934 Act has been complied with. The contract between the employees and the railroad was a sensible and realistic application of the statute to the peculiar requirements of plaintiffs’ jobs. The Fair Labor Standards Act (52 Stát. 1060),"
},
{
"docid": "23464856",
"title": "",
"text": "Whitaker, Judge, delivered the opinion of the court: Plaintiffs, civilian security guards employed by the Norfolk Naval Shipyard, Portsmouth, Virginia, sue to recover at overtime rates for duties, said to have been performed pursuant to official order or approval, in excess of 40 hours in each administrative workweek, as provided by section 201 of the Federal Employees Pay Act of 1945, 59 Stat. 295, as amended, 68 Stat. 1109 (1954), 5 U.S.C. 911 (1958). By regulation, plaintiffs were required to report 15 minutes before their tour of duty began, but, actually, they reported at least 20 minutes before. The Trial Commissioner in his opinion concludes that plaintiffs are entitled to 20 minutes overtime. We think they are entitled to only 15 minutes. On other phases of the case we aré in substantial agreement with the Commissioner. Midway on the east coast, the Hampton Boads area, wherein the Norfolk Naval Shipyard is located, is one of the great natural harbors of the world. The Shipyard, a military installation under the command of a Naval officer, has as its primary function shipbuilding and ship maintenance for the Navy. Because it is a military installation, an around-the-clock security force is required to man specified posts throughout the installation proper. Both civilian and military personnel have been utilized for this purpose. During all times herein material, the civilian guard force was under the supervision of the Security Officer, a commissioned officer of the United States Marines; and the direct administration and supervision of the guard force was performed by the Chief of Police. The guard force operated on the basis of three 8-hour shifts per 24-hour period. The activities and operation of each of the three daily shifts were supervised by a “Captain of the Watch” who was directly responsible to the Chief of Police. Sometime prior to, but effective during this period, the Security Office had caused to be issued specified written regulations governing the functions of the civilian guard force. Under the heading “General Instructions” appeared the following: 12. Beport to police headquarters fifteen minutes before going on duty. Each of the"
},
{
"docid": "23198061",
"title": "",
"text": "or law enforcement employees who are on duty for more than 24 hours, but only if there is an express or implied agreement between the employer and the employee to exclude such time. In the absence of any such agreement, sleep and meal time will constitute hours of work. * * * We think that the only reasonable construction of these regulations is that they were intended to apply prospectively to conform with the Congressional purpose and that the reference to \"implied agreement” in section 553.15(b) means an agreement entered into after the Act became applicable to firefighters and after the regulations were promulgated. It would be anomalous to hold that the regulations mean that since plaintiffs had, in the past, accepted pay computed according to the law then in effect, they thereby waived legal rights which were not granted to them until January 1,1975. By reference to Part I, it will be seen that FPM Letter 551-5, attachment 2, is not only consistent with 29 C.F.R. sec. 553.15(b), but that except for the omission of the word \"implied,” it is a virtual copy of the Department of Labor regulation. Consequently, we think it should be given the same interpretation. Despite the Regional Director’s decision, we think that the Civil Service Commission clearly understood that firefighters with a tour of duty of more than 24 hours were not \"subject to the same basic provisions which apply to other types of employees who have a tour of duty of 24 hours or more.” This is shown by FPM Letter 551-14 containing \"Instructions for Applying the Fair Labor Standards Act (FLSA) to Federal Employees in Receipt of Annual Premium Pay (Other Than Those Employees Engaged in Fire Protection Activities or Law Enforcement Activities).” Attachment 1 to this letter provides in pertinent part as follows: 3. Allowable deductions of meal and sleep periods from \"hours of work.” An agency may exclude bona fide meal periods during the employee’s regularly scheduled workday. An employee in receipt of annual premium pay for standby duty who is on duty for 24 hours or more receives basic"
},
{
"docid": "3001700",
"title": "",
"text": "COLLET, Circuit Judge. Two separate actions were instituted in 1945 in the United States District Court for Nebraska to recover compensation under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., for time allegedly devoted by plaintiffs to defendant’s work and for which the plaintiffs were not compensated. The cases were consolidated. The trial was by the court without a jury. After entering detailed findings of fact the trial court entered judgment for the defendant. The principal question involved on this appeal is whether the findings supporting the judgment are clearly erroneous. Defendant was engaged in the operation of a large Ordnance plant for the United States Government at Grand Island, Nebraska, in the production of explosives, bombs and T.N.T. for use in the prosecution of World War II. Plaintiffs were employed by defendant as guards, matrons, firemen, workmen in the production line processing explosive materials and loading bombs, called powder line operators, production inspectors, safety inspectors and area maintenance men. The guards, including matrons, are claiming compensation for time spent on defendant’s premises after their guard shift was over while waiting for drill or pistol practice. For a portion of the period of employment this waiting time was 30 minutes. Later it was reduced to 15 minutes. Still later it was eliminated entirely. The trial court found that during this waiting period the guards were completely off duty, that the periods constituted “preliminary” and “postliminary” activities for which there was neither a contract nor a cus-ton for payment under the Portal-to-Portal Act. 29 U.S.C.A. § 251 et seq. The firemen are claiming compensation for two, three and five hour periods periodically occurring when they were required to be on duty during what they claim was their sleeping period. During the period in controversy the firemen were working on the two platoon system. That is, they were on duty for 24 hours and off duty 24 hours. The 24 hour duty period was divided into 8 hours regular duty, 8 hours recreation and 8 hours sleeping time. They were paid for the 8 hour sleeping period. They claim,"
},
{
"docid": "23660449",
"title": "",
"text": "firefighters were scheduled to work ten 24-hour shifts, while groups \"A\" and \"C\" firefighters were scheduled to work nine 24-hour day shifts. . Two thousand seven hundred and fifty-six hours is an average work week of 53 hours (52 X 53 = 2,756). The average hours roughly equate to a year’s worth of 24-hour shifts with 2 days in between each shift but less a 12 hour relief day every 28 days. . \"Time\" was defined to include actual hours worked, sick leave, vacation leave, military duty, on-the-job injury time, and jury duty. . In determining whether an employee had received the proper compensation, the City recalculated the salary for each 28-day cycle during the period. For example, the record indicates that one employee worked 228 hours in pay cycle No. 5 and was credited with unpaid overtime of 16 hours (228-212 = 16). A separate computation revealed that the employee worked only 204 hours in pay cycle No. 6, and therefore, the firefighter owed the City for 4 hours of excess computation (212-204 = 8). The City then computed the net balance of the employee’s account after making similar computations for every 28-day cycle during the period. . Atlanta has twenty double stations with two firefighter companies housed in the same building, and fourteen single stations. A single station usually has four firefighters, including a captain. A double company station usually has eight firefighters, including a captain and lieutenant. . “Compensable time” included actual hours worked, sick leave, vacation leave, military duty, on-the-job injury time, and jury duty. GODBOLD, Senior Circuit Judge, concurring in part and dissenting in part: I concur in the opinion of the court except in two respects, as to which I dissent. EXEMPTION OF CAPTAINS I am not able to agree that, pursuant to the “short test,” captains are exempt from the overtime provisions of the Act after September 3, 1986 when pay for them began to be based on the exact number of hours they actually work. To meet the “short test” for exemption from overtime the employee must be paid “on a salary"
},
{
"docid": "2537400",
"title": "",
"text": "receive hourly wages and work under a colleetive-bargaining agreement (“CBA”) between the contractor and the International Union, the Transport Workers Union of America Local No. 526 at Kings Bay. The union represents all union employees at Kings Bay, not just the firefighters and engineers. The firefighters and engineers may, but they do not have to, belong to the union; in any event, they must pay union dues. The firefighters and engineers contend the defendants have not paid them according to the terms of the CBA. The firefighters and engineers work 24 hour shifts. They receive their full hourly wage for the first eight hours, and time and a half for the second eight hours. During the third eight-hour period, they are free to do what they want, including sleep in facilities provided, but they must stay on the premises in case they are called to duty. The district court found that the plaintiffs are not paid when the entire third eight-hour period is sleep time. However, the defendants point out that if the plaintiffs work three or fewer hours during this period, they are paid time and a half for the number of hours worked; if they work more than three hours, they are paid time and a half for the full eight hours, regardless of whether they work for three hours and one minute, or the full eight hours. The captains and assistant chiefs work three 24 hour shifts per week, just as firefighters and engineers do, but the captains and assistant chiefs receive salaries and do not belong to a union. On November 25, 1991, the fire department published a memorandum stating that when salaried firemen work less than three 24 hour shifts per week, their leave time will be charged. Johnson Controls rescinded this policy on October 14, 1992; the contractor claims it did so upon learning that the FLSA and its regulations prohibit charging salaried employees’ leave time when they work less than an entire shift. The contractor then established a new policy. The contractor claims it reimbursed each captain and assistant chief whose wages had"
},
{
"docid": "2537399",
"title": "",
"text": "HAND, Senior District Judge: The plaintiffs filed this action on June 18, 1991, alleging the defendants had violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., (“FLSA”). The plaintiffs are current or former firefighters, engineers, fire captains, and assistant chiefs at the Kings Bay naval submarine base (“Kings Bay”) in Camden County, Georgia. Defendant Johnson Controls, Inc., is the current base operations service contractor at Kings Bay; as such, it has the management contract for the base. This action is before the court on two appeals from the United States District Court for the Southern District of Georgia, Brunswick Division. The defendants appeal the district court’s denial of their motion to dismiss or, in the alternative for summary judgment; this motion claimed the court did not have subject-matter jurisdiction. The plaintiffs appeal the granting of the defendants’ summary-judgment motion on the claim of the firefighters and engineers; that motion was based on substantive issues. The plaintiffs also appeal a holding regarding the captains and assistant chiefs. 1. Background The firefighters and engineers receive hourly wages and work under a colleetive-bargaining agreement (“CBA”) between the contractor and the International Union, the Transport Workers Union of America Local No. 526 at Kings Bay. The union represents all union employees at Kings Bay, not just the firefighters and engineers. The firefighters and engineers may, but they do not have to, belong to the union; in any event, they must pay union dues. The firefighters and engineers contend the defendants have not paid them according to the terms of the CBA. The firefighters and engineers work 24 hour shifts. They receive their full hourly wage for the first eight hours, and time and a half for the second eight hours. During the third eight-hour period, they are free to do what they want, including sleep in facilities provided, but they must stay on the premises in case they are called to duty. The district court found that the plaintiffs are not paid when the entire third eight-hour period is sleep time. However, the defendants point out that if the plaintiffs work"
},
{
"docid": "23198053",
"title": "",
"text": "under the Department’s grievance procedure because the Civil Service Commission had established an appeals procedure. Consequently, he said, the agency grievance system could not cover any matter subject to administrative review outside the Department of Agriculture. In June 1976, plaintiffs’ union representative and the PIADC management entered into negotiations to establish a new collective bargaining agreement. Although the union proposal did not make any reference to eating and sleeping time for the computation of overtime, the PIADC team proposed that sleeping and meal time should be excluded from the hours worked by the firefighters who were on duty for more than 24 hours. The union then submitted a counter-proposal that no deductions should be made for the sleeping and eating time allowed firefighters during their tours of duty. As a result of the counter-proposal, the parties reached an impasse, and after the chief negotiator for management learned that the union intended to appeal the issue to the Civil Service Commission, both parties mutually agreed to withdraw their proposals. Plaintiffs submitted their appeal and claim to the Regional Director of the Civil Service Commission in November 1976, and supplemented the appeal with additional information in a letter of February 23, 1978. The Regional Director rejected plaintiffs’ claim in an opinion issued January 17, 1979. He held that FPM Letter 551-5, attachment 2, precluded plaintiffs’ right to recover, because they had implicitly agreed to exclude sleeping and eating time in the computation of their overtime pay. He stated that in drafting the regulations to carry out the Congressional mandate, the Department of Labor had provided that firefighters having a tour of duty of more than 24 hours are subject to the same provisions which apply to other employees who have a tour of duty of more than 24 hours, and therefore, the firefighters should be treated in the same manner as all other employees with such tours of duty. He concluded that since the plaintiffs had continued, since January 1,1975, to accept their pay checks which excluded sleeping and eating time, they had thereby implicitly agreed to exclude such sleeping and eating"
},
{
"docid": "23329537",
"title": "",
"text": "the sleep time is interrupted to such an extent that the employee cannot get a reasonable night’s sleep, ... the entire time must be counted as hours of work.” 29 U.S.C. § 553.222(c). Finally, as is pertinent here, the FLSA exempts from its overtime requirements salaried, executive employees, 29 U.S.C. § 213(a)(1), as that term is defined at 29 C.F.R. § 541.1. In response to Garcia, the City of Grenada undertook to devise a new work schedule and pay system for its fire department personnel. Whereas fire department personnel had previously worked shifts of 24 hours on and 48 hours off, the system proposed by the City established a 28-day tour of duty with 25 hours on and 47 hours off. Additionally, under the new system, eight hours of a shift were designated as sleep time, so that employees were no longer to be paid for their entire shift, but rather were to be paid for 17 hours of a 25-hour shift. The new plan also designated fire captains as executive employees and changed them from hourly to salaried status. To implement the new system, James Turner, Grenada’s city manager, met with fire department personnel in August 1985. Turner explained the system and distributed to each employee for his signature a document entitled “FLSA Agreement.” The agreements recited that the signing employee “underst[oo]d and agree[d] to the changes made regarding [the Fair Labor Standards Act],” including, inter alia, that “[sleeping time up to eight (8) hours will be deducted from the hours in a tour of duty.” The agreements further provided that “interrupted sleep time will be paid[;] if interruption is over three (3) hours, the full eight (8) hours of sleep will be counted as hours worked.” Each of the appellants signed a FLSA Agreement. The City’s new work schedule and pay system became effective October 4, 1985 and the first paychecks under the system were issued October 25, 1985. Appellants worked and were paid in accordance with this system for nearly four years before filing suit against the City on July 6, 1989. In their complaint, appellants alleged"
},
{
"docid": "23198050",
"title": "",
"text": "next morning; or in the case for example, of a criminal investigator who has a scheduled eight and one-half hour shift from 8:30 a.m. until 5:00 p.m. the same day), or to scheduled periods outside the shift (as in the case for example, of a special detail involving crowd control during a parade or other such event. * * * * * * * * 4. Sleeping and Meal Time a. Duty of 24 Hours or Less. Sleep and meal time shall not be excluded from hours worked in the case of any employee engaged in fire protection activities or law enforcement activities when the employee is required to be on duty for 24 hours or less. b. Duty of More Than 24 Hours. Sleep and mean time may, however, be excluded in the case of fire protection or law enforcement employees who are on duty for more than 24 hours, but only if the employer and the employee have agreed to exclude this time. In the absence of any agreement, sleep and meal time shall constitute hours of work. * * * Prior to January 1, 1975, and in accordance with law in effect at that time, plaintiffs were paid under the \"two-thirds rule.” Under this judicially approved rule, 8 of every 24 hours of plaintiffs’ tours of duty were excluded as non-compensable time. See Collins v. United States, 141 Ct. Cl. 573 (1958). The parties are agreed that since January 1, 1975, the plaintiffs have been required to serve on continuous 72-hour tours of duty during each 6 days. After these tours of duty, they could leave Plum Island, but were required to report back there for an additional tour of duty 72 hours later. Thus, during each 28-day period since January 1, 1975, plaintiffs have been required to remain on duty in excess of the number of hours which entitle them to overtime compensation under 29 U.S.C. sec. 207(k)(l), unless the defendant was legally authorized to deduct eating and sleeping time in computing their overtime pay. As will be shown infra, the Department of Agriculture and the"
},
{
"docid": "23198054",
"title": "",
"text": "the Regional Director of the Civil Service Commission in November 1976, and supplemented the appeal with additional information in a letter of February 23, 1978. The Regional Director rejected plaintiffs’ claim in an opinion issued January 17, 1979. He held that FPM Letter 551-5, attachment 2, precluded plaintiffs’ right to recover, because they had implicitly agreed to exclude sleeping and eating time in the computation of their overtime pay. He stated that in drafting the regulations to carry out the Congressional mandate, the Department of Labor had provided that firefighters having a tour of duty of more than 24 hours are subject to the same provisions which apply to other employees who have a tour of duty of more than 24 hours, and therefore, the firefighters should be treated in the same manner as all other employees with such tours of duty. He concluded that since the plaintiffs had continued, since January 1,1975, to accept their pay checks which excluded sleeping and eating time, they had thereby implicitly agreed to exclude such sleeping and eating time. On February 3, 1975, plaintiffs filed a motion for rehearing, but no further action was taken by the OPM, and on July 24,1979, plaintiffs filed their suit in this court. II. The Court’s Jurisdiction The court has jurisdiction of the plaintiffs’ claim by virtue of the provisions of 29 U.S.C. sec. 207(k), FPM Letter 551-5, and 29 U.S.C. sec. 216(b), which provides: § 216. * * * * * * * * (b) Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation as the case may be, and an additional equal amount as liquidated damages. Action to recover such liability may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. * * * The defendant states that the"
},
{
"docid": "22925597",
"title": "",
"text": "and liquidated damages. a. City contends the firefighters on the bottom of the list would not be called in as frequently as a firefighter on the top of the list. While the district court acknowledged this, it found there was an undisputed average of 3-5 callbacks per 24-hours. (R., Vol. II, Tab 47 at p. 3). We agree. Accordingly, we hold that the district court correctly applied this 3-5 callback figure to all firefighters. b. City contends firefighters should not receive pay for meal and sleeping time while on the “on-call” list but not on a regular “tour of duty.” The district court found the meal and sleep time compensable under federal regulations 29 C.F.R. § 553.-222-23. The regulations state in part, § 553.222 Sleep time. (b) Where the employer has elected to use the section 7(k) exemption, sleep time cannot be excluded from the compensa-ble hours of work ... (2) Where the employee is on a tour of duty of exactly 24 hours ... 29 C.F.R. § 553.222 § 553.223 Meal time. (c) ... Where the public agency elects to use the section 7(k) exemption for firefighters, meal time cannot be excluded from the compensable hours of work ... (2) where the firefighter is on a tour of duty of exactly 24 hours ... 29 C.F.R. § 553.223 City argues that the firefighters were not on a “tour of duty” as required by the regulations, and therefore they are not entitled to compensation for sleep and meal times. The federal regulations define “tour of duty” as “the period of time during which an employee is considered to be on duty for purposes of determining com-pensable hours.” 29 C.F.R. § 553.220(b). The district court found the 24-hour on-call shifts were compensable hours under FLSA. Renfro, 729 F.Supp. at 751. Further, the court found that since the on-call shifts were 24-hours in length, the sleep and meal times were compensable under 29 C.F.R. §§ 553.222-223. Renfro, 1990 WL 95087 at 3. Having held that the district court properly found that the 24-hour on-call shifts were compensable under FLSA, we also hold"
},
{
"docid": "22801605",
"title": "",
"text": "Mr. Justice Murphy delivered the opinion of the Court. We are concerned here with the question whether certain provisions of employment contracts relating to the computation and application of regular and overtime wage rates conform to the requirements of § 7 (a) of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U. S. C. § 201 et seg. Respondent is engaged in the production of oil and gas for interstate commerce and its employees admittedly are covered by the Act. Prior to October 24, 1938, the effective date of the Act, certain of respondent’s employees worked 8-, 10- and 12-hour daily shifts, or “tours,” and were paid a specified wage for each tour. These wages were in excess of the minimum required by the Act, though the number of tours per week would often cause an employee to work more than the maximum hours allowed by the Act without overtime pay being required. In order to maintain the same wage levels after the Act became effective, respondent made new employment contracts with the employees in question whereby they received their wages under the so-called “Poxon” or split-day plan. This plan arbitrarily divided each regular tour into two parts for purposes of calculating and applying hourly wage rates. The first four hours of each 8-hour tour, the first five hours of each 10-hour tour and the first five hours of each 12-hour tour were assigned a specified hourly rate described as the “base or regular rate.” The remaining hours in each tour were treated as “overtime” and called for payment at one and one-half times the “base or regular rate.” The contracts then recited that the “base rate” set forth “shall never apply to more than 40 hours in any work week.” These so-called “regular” and “overtime” hourly rates were calculated so as to insure that the total wages for each tour would continue the same as under the original contracts, thereby avoiding the necessity of increasing wages or decreasing hours of work as the statutory maximum workweek of 40 hours became effective. Only in the extremely unlikely"
},
{
"docid": "23198058",
"title": "",
"text": "quoted from the House Conference Report (see Part I) and was aware of the fact that Congress had adopted a new overtime standard for firefighters, keyed to the length of their tours of duty. However, he erroneously found that in drafting regulations to carry out the Congressional mandate to define a tour of duty, the Department of Labor had provided: * * * firefighters who have a tour of duty of \"more than 24 hours” are subject to the same basic provisions which apply to other types of employees who have a tour of duty of \"24 hours or more.” Thus, firefighters who have consecutive 72-hour tours must be treated in the same manner as all other employees with such tours of duty. He then went on to hold that since plaintiffs had accepted pay checks which excluded eating and sleeping time, this was enough to constitute an implied agreement within the meaning of the regulations. Contrary to the Regional Director’s finding, the Department of Labor issued new regulations on December 20, 1974, shortly after Pub. L. 93-259 was enacted. These regulations are codified in 29 C.F.R. sections 553.1 to 553.21 (1979) and were issued for the purpose of applying the new law specifically to \"Employees of Public Agencies Engaged in Fire Protection or Law Enforcement Activities (Including Security Personnel in Correctional Institutions),” rather than to all other employees with duty tours of 24 hours or more, as stated in the decision of the Regional Director. Section 553.12 of these regulations, entitled \"General statement,” recognized the special concern which Congress had expressed in behalf of the firefighters in the Conference Report. Section 553.12(a) provides: (a) In extending the Act’s coverage to public agency employees engaged in fire protection and law enforcement activities, Congress, recognizing the uniqueness of these activities, established section 7(k) which permits the computation of hours worked on the basis of a work period (which can be longer than a workweek) and which bases the overtime requirements on a work period concept. In adding this provision, Congress made it clear that some adjustment would have to be made"
},
{
"docid": "18945018",
"title": "",
"text": "made available to him for sleeping and eaiting, so that during the week a total of 28 hours were so available, we are unable to see how the employee had spent more than 56 hours during the week at labor and in a compensable stand-by status. All that the Act requires is that an employee be paid regular time for 40 hours a week, and that he shall be paid time and a half for hours of labor in excess of 40 hours. Time spent in eating and sleeping are not spent in labor. Since it is not alleged that plaintiffs were deprived of the requisite number of hours for sleeping and eating, and since it appears that they have been paid for all time spent except in eating and sleeping, it seems to us that the 1934 Act has been complied with. The contract between the employees and the railroad was a sensible and realistic application of the statute to the peculiar requirements of plaintiffs’ jobs. The Fair Labor Standards Act (52 Stát. 1060), applicable to private industry engaged in interstate commerce, provided for a workweek of 40 hours at regular pay, and time and a half for overtime. Swift & Company employed firefighters for the protection of their plant. From three and one-half to four nights a week they were required to remain at the fire hall after their hours of labor were over. They, claimed overtime therefor. The Supreme Court, in its opinion reported in Skidmore v. Swift & Co., 323 U. S. 134, did not decide whether they were entitled to be paid for sleeping and eating time, but at page 139 it did refer to the brief amicus curiae of the Administrator of the Fair Labor Standards Act as follows: The facts of this case do not fall within any of the specific examples given, but the conclusion of the Administrator, as expressed in the brief amicus curiae, is that the general tests which he has suggested point to the exclusion of sleeping and eating time of these employees from the workweek and the inclusion"
},
{
"docid": "23329536",
"title": "",
"text": "to pay overtime only if the hours worked in a 28-day work period exceed 212 hours. Further, FLSA regulations specifically address the com-pensability of sleep time, providing at 29 C.F.R. § 553.222(c) that a public employer may exclude sleep time of firefighters who are on a scheduled tour of duty of more than 24 hours, if, “but only if there is an expressed or implied agreement between the employer and the employees to exclude such time” from hours worked. 29 C.F.R. § 553.222(c). “In the absence of such an agreement, the sleep time is compensable.” Id. See also Morehead v. Pearl, 763 F.Supp. 175, 176 (S.D.Miss.1990); Harrison v. Clarksville, 732 F.Supp. 804, 806 (M.D.Tenn.1989); Jacksonville Professional Fire Fighters Ass’n, Local 2961 v. Jacksonville, 685 F.Supp. 513, 518-19 (E.D.N.C.1987); International Ass’n of Firefighters, Local 349 v. Rome, 682 F.Supp. 522, 529 (N.D.Ga.1988). While sleep time, therefore, can be excluded from compensa-ble hours of work, the regulations require that sleep time which is interrupted by a call to duty must be counted as hours worked, and “[i]f the sleep time is interrupted to such an extent that the employee cannot get a reasonable night’s sleep, ... the entire time must be counted as hours of work.” 29 U.S.C. § 553.222(c). Finally, as is pertinent here, the FLSA exempts from its overtime requirements salaried, executive employees, 29 U.S.C. § 213(a)(1), as that term is defined at 29 C.F.R. § 541.1. In response to Garcia, the City of Grenada undertook to devise a new work schedule and pay system for its fire department personnel. Whereas fire department personnel had previously worked shifts of 24 hours on and 48 hours off, the system proposed by the City established a 28-day tour of duty with 25 hours on and 47 hours off. Additionally, under the new system, eight hours of a shift were designated as sleep time, so that employees were no longer to be paid for their entire shift, but rather were to be paid for 17 hours of a 25-hour shift. The new plan also designated fire captains as executive employees and changed them"
},
{
"docid": "22429175",
"title": "",
"text": "I The facts of this case are set forth in detail in the district court opinion, Zumerling v. Marsh, 591 F.Supp. 537 (W.D.Pa.1984). While a complete repetition of these facts is not necessary to the resolution of the questions of law considered here, we recount the relevant statutory provisions and the overtime computation schemes set by OPM and requested by the firefighters. A. Background In contrast to the typical general schedule (GS) employee who is scheduled for a 40-hour workweek, the appellants typically work six 24-hour shifts, or 144 hours, in every 14-day work period. Also, unlike a typical employee who is on duty for all working hours, the firefighters are only on duty for 8 hours of each 24-hour shift; the remaining 16 hours are standby time where the firefighters may do as they please within the confines of the duty area. Congress has recognized that appellants’ work schedules are different from those of typical government employees, and in Title V set forth the computation for a firefighters’ pay in recognition of this difference. In accordance with 5 U.S.C. § 5545, on a weekly basis a firefighter receives basic pay, computed by dividing the yearly GS pay by 2,080 hours, and “premium pay” of up to 25 percent of the basic GS pay. This pay structure, doubled to compensate firefighters for their full 144-hour biweekly work period, is premised independently upon Title V and existed prior to the FLSA amendments mandating overtime compensation rates for federal firefighters. In 1974 the FLSA was amended to include within its scope, among others, federal firefighters. Under section 7(a) of the FLSA, “[ejxcept as otherwise provided in this section,” employees receive overtime compensation for a workweek over 40 hours at a rate of one and one-half times their “regular rate.” 29 U.S.C. § 207(a). (According to § 7(e) “regular rate” includes all remuneration except, inter alia, sums paid as gifts or rewards or payments made for occasional periods when no work is performed, i.e., sick leave, vacation time, and similar periods. 29 U.S.C. § 207(e).) Section 7(k), however, provides an exception to §"
},
{
"docid": "9532102",
"title": "",
"text": "shift from 12:30 a. m. until 8:30 a. m., the men went to bed. The sleeping quarters consisted of large rooms with wooden or iron beds and mattresses. These accommodations were of the same general character as those in the plant dormitories which employees paid to use. In addition, the men were furnished cooking facilities and utensils, bathing and toilet facilities, bedding and laundry service. Although the rest or sleeping period was not supposed to commence until 12:30 a. m., the men ordinarily retired before 12 o’clock midnight. Fire calls were infrequent and the firemen’s sleep was rarely interrupted; the calls to appellants during their sleeping time consumed a total of 105.2 hours out of 78,655.4 hours during the period from February 7, 1944, to, and including, August 25, 1945. The court found that the contract of employment provided for the operation of appellee’s fire department under the two-platoon system; that the system imposed no restraint on the liberty or normal pursuits of appellants during the 8-hour sleeping pe riod other than, the requirement that appellants sleep at the plaht subject to call for service in case of emergencies; that the living conditions provided were suitable and reasonable; that in the actual operation of the system, appellee did not cause or permit appellants to be deprived of the 8-hour sleeping period or any part thereof out of each 24-hour shift without the payment of compensation therefor or without according them other suitable periods for sleep in lieu thereof; that appellee complied in full with the terms of the contract; that appellants were paid at the rate of 76 cents per hour for the first two 8-hour shifts (16 hours), with time and a half for all hours worked over 40 hours in any work week; and that time spent on emergency calls during the sleeping shift was paid for at the rate of time and one-half irrespective of the length of the work week. Upon these facts the court concluded that appellants and appellee had entered into a contract of employment under which appellants agreed to sleep at the plant"
},
{
"docid": "23198062",
"title": "",
"text": "of the word \"implied,” it is a virtual copy of the Department of Labor regulation. Consequently, we think it should be given the same interpretation. Despite the Regional Director’s decision, we think that the Civil Service Commission clearly understood that firefighters with a tour of duty of more than 24 hours were not \"subject to the same basic provisions which apply to other types of employees who have a tour of duty of 24 hours or more.” This is shown by FPM Letter 551-14 containing \"Instructions for Applying the Fair Labor Standards Act (FLSA) to Federal Employees in Receipt of Annual Premium Pay (Other Than Those Employees Engaged in Fire Protection Activities or Law Enforcement Activities).” Attachment 1 to this letter provides in pertinent part as follows: 3. Allowable deductions of meal and sleep periods from \"hours of work.” An agency may exclude bona fide meal periods during the employee’s regularly scheduled workday. An employee in receipt of annual premium pay for standby duty who is on duty for 24 hours or more receives basic pay plus annual premium pay for this tour of duty arrangement. Such a tour of duty typically consists of productive work, standby duty, and eating and sleeping periods. Provided an employee has a bona fide sleep period an agency may exclude up to 8 hours of sleep time for such a tour of duty. * * * The defendant has admitted that plaintiffs have never entered into an express written agreement with the Department of Agriculture to exclude sleep and meal time from the computation of hours worked under the FLSA. Since defendant’s case rests upon the alleged existence of an implied agreement, it is necessary to determine whether, under the law of implied contracts, plaintiffs implicitly consented to the exclusion. In Operations Manuals, Inc. v. United States, 205 Ct. Cl. 854, 855 (1974), we held: In order for a contract implied in fact to exist, there must be a meeting of minds and mutual consent to be bound. 17 Am. Jur. 2d Contracts sec. 3 (1964); J. C. Pitman & Sons, Inc. v. United"
}
] |
342026 | absence of unjust enrichment, where other good reasons exist fines are appropriate. See United States v. Czeck, 28 M.J. 563 (N.M.C.M.R.), petition denied, 29 M.J. 275 (C.M.A.1989). The trial counsel agreed that confinement was neither convenient nor prudent in this case. A fine was among the range of penalties authorized by law and contemplated by the appellant and his counsel. The appellant has provided no evidence that the fine is either oppressive or that he lacks the ability to pay. We specifically find that the fine was appropriate under the circumstances of this case. The appellant’s second and third assignments of error are also without merit. See United States v. Graf, 32 M.J. 809, (N.M.C.M.R.1990), aff'd, 35 M.J. 450 (C.M.A.1992); REDACTED Accordingly, the findings and sentence as approved on review below are affirmed. Senior Judges STRICKLAND and ORR concur. . I. A SENTENCE WHICH INCLUDES A §1,500 FINE IS INAPPROPRIATE IN THIS CASE. II. THE COURT-MARTIAL HAD NO JURISDICTION BECAUSE THE MILITARY JUDGE’S LACK OF A FIXED TERM OF OFFICE LEFT THE MILITARY JUDGE INSUFFICIENTLY INDEPENDENT TO SATISFY THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE. But see United States v. Graf, 32 M.J. 809 (N.M.C.M.R.1990), petition granted, 34 M.J. 169 (C.M.A.1991). BECAUSE THE ERROR IS JURISDICTIONAL AND THE RECORD CONTAINS NO EVIDENCE OF A KNOWING WAIVER OF APPELLANT’S RIGHT TO AN INDEPENDENT MILITARY JUDGE, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. III. THE GENERAL COURT-MARTIAL LACKED | [
{
"docid": "1085846",
"title": "",
"text": "a commission created by Congress to acquire lands for a park). Accordingly, we conclude the appellant’s first assignment of error is also without merit. The findings and sentence, as approved on review below, are affirmed. . I. APPELLANTS COURT-MARTIAL LACKED JURISDICTION BECAUSE THE MILITARY JUDGE WAS DESIGNATED IN VIOLATION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION. See Generally U.S. Const. Art. II, § 2, cl. 2; Freytag v. Commissioner of Internal Revenue, — U.S. -, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991). BECAUSE THIS ERROR IS JURISDICTIONAL, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. II. THE COURT-MARTIAL HAD NO JURISDICTION BECAUSE THE MILITARY JUDGE'S LACK OF A FIXED TERM OF OFFICE LEFT THE MILITARY JUDGE INSUFFICIENTLY INDEPENDENT TO SATISFY THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE. But see United States v. Graf, 32 MJ. 809 (N.M.C.M.R.1990), petition granted, 34 MJ. 169 (C.M.A.1991). BECAUSE THE ERROR IS JURISDICTIONAL AND THE RECORD CONTAINS NO EVIDENCE OF A KNOWING WAIVER OF APPELLANT'S RIGHT TO AN INDEPENDENT MILITARY JUDGE, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. . U.S. Const, art. II, § 2, cl. 2. . Army chaplains are \"inferior officers” within the meaning of the Appointment Clause. 10 Op. Att’y Gen. 449 (1863)."
}
] | [
{
"docid": "17119587",
"title": "",
"text": "216 (C.M.A. 1979); United States v. Thomas, 33 M.J. 768 (N.M.C.M.R.1991). However, a Writ of Mandamus is a drastic remedy that should be used only in truly extraordinary situations. United States v. Lobelia, 15 M.J. 228 (N.M.C.M.R.1983). In particular, it should not be invoked in cases where other authorized means of appeal or administrative review exist. Coffey v. Commanding Officer, USS Charleston, 33 M.J. 938 (N.M.C.M.R.1991). To justify extraordinary relief, the petitioner bears the burden of demonstrating that he is entitled to it as a clear and indisputable right. Thomas, 33 M.J. at 770; Smithee v. Vorbach, 25 M.J. 561 (C.G.C.M.R.1987). In this case, to satisfy this burden, the petitioner must demonstrate to this Court that he is clearly and indisputably entitled to enforcement of the express written confinement limitation in his pretrial agreement even though that limitation appears as the result of a mistake and does not reflect the actual confinement limitation to which all parties had originally agreed. In addition, he must demonstrate that enduring the normal pace of appellate review under Article 66, UCMJ, 10 U.S.C. § 866, will effectively deny him the relief to which he is entitled. We need not reach the second prong of this burden because we find that the petitioner has not satisfied the first. Ill The military judge has an established duty in military law to inquire into the terms of a pretrial agreement on the record to ensure that his understanding of those terms comports with the understanding of all the parties. Green; United States v. King, 3 M.J. 458 (C.M.A.1977); Rule for Courts-Martial (R.C.M.) 910(f). Put in contract terms, he has a duty to ensure that there has been a “meeting of the minds” of the parties with respect to the terms of the agreement. As to the sentencing limitation terms in particular, in a trial before military judge alone, the judge is advised by case law and R.C.M. 910(f)(3) to examine them after sentence is announced and to reopen the inquiry to cover those terms specifically. Green, 1 M.J. at 455. If a common understanding of the meaning"
},
{
"docid": "15052992",
"title": "",
"text": "M.J. 618 (A.F.C.M.R. 1980), findings aff'd, sentence rev’d on other grounds, 13 M.J. 423 (C.M.A.1982); United States v. Blacquiere, 9 M.J. 712 (A.F.C.M.R.1980), pet. denied, 9 M.J. 177 (C.M.A.1980). Compare United States v. Johnson, 41 C.M.R. 49 (C.M.A.1966); United States v. Franklin, 41 C.M.R. 431, 437-39 (A.C.M.R.1969). Accordingly, we find that these particular issues were waived. Assuming arguendo that appellant was subjected to illegal pretrial confinement and that the issue is viable on appeal, we find sentence reassessment nonetheless unwarranted. The record of trial clearly shows that, based upon his staff judge advocate’s advice, the convening authority reduced appellant’s sentence by four months to comply with the military judge’s order that the accused receive “credit for 103 days served in [illegal] pretrial confinement____” Further, in accordance with existing Army confinement policy, appellant has been given an additional 103 days of administrative credit for the pretrial confinement served from 7 October 1982 to 18 January 1983. Any further sentencing credit for the pretrial confinement served would constitute a windfall to the appellant. II. POST-TRIAL CONFINEMENT CONDITIONS Appellant asserts that his continued segregation following court-martial constituted illegal punishment in contravention of Article 55, UCMJ, 10 U.S.C. § 855, and he seeks meaningful sentence reassessment. This issue has not been waived and is within the jurisdiction of this Court to review due to the circumscribed scope of relief sought in the assignment of error. Although appellant couches his assignment of error in terms of a violation of Article 55, it is clear that the appellant’s contentions implicitly encompass an alleged violation of the eighth amendment of the United States Constitution. The eighth amendment applies to court-martial procedures. United States v. Rojas, 15 M.J. 902, 927 (N.M.C.M.R.1983), rev’d on other grounds, 17 M.J. 154 (C.M.A.1984). However, the statutory safeguards of Article 55, UCMJ, encompass all constitutional safeguards of the eighth amendment, as the former parallels the latter. United States v. Matthews, 13 M.J. 501, 521 at n. 10 (A.C.M.R.1982), sentence rev’d, 16 M.J. 354 (C.M.A.1983). Although Article 55 may provide certain additional safeguards not here applicable, see United States v. Wappler, 9 C.M.R. 23"
},
{
"docid": "343186",
"title": "",
"text": "which the objection was made. Accordingly, we find that the Mil.R.Evid. 403 objection was waived. ’ For the reasons discussed, appellant’s above stated assignment of error, including any error implicitly contained therein, is without merit. Next, appellant asserts that the military judge erred when he failed sua sponte to stop trial counsel’s improper argument referring to the operation of AR 735-11 and trial counsel’s material misrepresentation that a fine is an appropriate mechanism by which to reimburse the government for the ambulance destroyed by appellant. We are satisfied that a fine could be adjudged as part of an appropriate punishment in this case notwithstanding the absence of any evidence that appellant was unjustly enriched as a result of his crimes. R.C.M. 1003(b)(3); see United States v. Williams, 18 M.J. 186, 189 (C.M.A.1984); see also United States v. Parini, 12 M.J. 679, 684 (A.C.M.R.1981), petition denied, 13 M.J. 210 (C.M.A.1982) (no legal requirement that a crime involve the unjust enrichment of an accused before a fine can be legitimately imposed). At most, R.C.M. 1003(b)(3) discussion recites a judicial policy that a fine normally should not be adjudged against a service member unless he was unjustly enriched as a result of the offense of which he was convicted. In this regard, we are satisfied that the government’s legal obligation to protect military property, an obligation magnified in intensity by the unique and direct relationship which the maintenance of military property has to combat readiness, constitutes a legitimate military basis for departing from any general policy against the imposition of fines in cases involving the theft, destruction, damage or wrongful disposition of military property. Appellant also asserts that the sole apparent purpose of requesting judicial notice of AR 735-11 was to permit trial counsel to argue the limit of liability as a matter in aggravation of sentence. From the appellant’s perspective, this tactic provided the foundation for requesting the imposition of a fine as a means of restitution. Our view of trial counsel’s argument, however, reveals that other primary purposes for urging imposition of a fine were (a) as a means of punishing"
},
{
"docid": "11374911",
"title": "",
"text": "of counsel during the penalty phase of his court-martial. The lack of such information, he asserts, is critical to his defense because, if information was available and trial defense counsel failed to present it, then he can show the Court that trial defense counsel’s failure prejudiced the results in his case in that he would not have been sentenced to death. Appellant bears the heavy burden of overcoming the presumption that his Article 27(b), UCMJ, 10 U.S.C. § 827(b), appointed and individual military trial defense counsel were competent. United States v. Scott, 24 M.J. 186 (C.M.A.1987). As we stated in a previous decision in this case, United States v. Thomas (I), (hereinafter Thomas I), 33 M.J. 768 (N.M.C.M.R. 1991), where expertise is required to provide an adequate defense, military due process requires that the expertise be provided. United States v. Garries, 22 M.J. 288 (C.M.A.1986), cert. denied, 479 U.S. 985, 107 S.Ct. 575, 93 L.Ed.2d 578 (1987). The defense bears the burden of demonstrating the need for that expertise and that without it, an adequate defense was not provided. United States v. Allen, 31 M.J. 572 (N.M.C.M.R.1990), pet. granted, 32 M.J. 222 (1990); United States v. Mann, 30 M.J. 639 (N.M.C.M.R.1990). Appellant asserts, without any particularity, that, without a thorough psychosocial background investigation conducted by an expert, he will not receive an adequate defense on the issue of the effective assistance of his counsel during the penalty phase of his court-martial. Both Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (a death penalty case), and Garries presume that the request for expert assistance is for assistance in a sub ject or field that is beyond the ken of a competent, diligent attorney who has put forth reasonable effort to recognize, learn, comprehend, understand, or perceive the subject or field as it relates to the facts and circumstances of his particular case. See United States v. Stark, 30 M.J. 328 (C.M.A.1990); Allen. We acknowledge for purposes of the issue as it is before us presently that a psychosocial investigation is not within the ken of a"
},
{
"docid": "1117258",
"title": "",
"text": "JURISDICTION BECAUSE THE MILITARY JUDGE’S LACK OF A FIXED TERM OF OFFICE LEFT THE MILITARY JUDGE INSUFFICIENTLY INDEPENDENT TO SATISFY THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE. BECAUSE THE ERROR IS JURISDICTIONAL AND THE RECORD CONTAINS NO EVIDENCE OF A KNOWING WAIVER OF APPELLANT’S RIGHT TO AN INDEPENDENT MILITARY JUDGE, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. (CITATION AND FOOTNOTE OMITTED.) V. THE COURT-MARTIAL LACKED JURISDICTION BECAUSE APPELLANTS MILITARY JUDGE WAS DESIGNATED IN VIOLATION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION. BECAUSE THIS ERROR IS JURISDICTIONAL, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. (CITATIONS AND FOOTNOTE OMITTED.) . DOES THE PROVIDENCE INQUIRY CONTAIN AN ADEQUATE FACTUAL BASIS TO SUPPORT APPELLANT’S GUILTY PLEAS WHEN THE MILITARY JUDGE DID NOT ASCERTAIN FROM APPELLANT THAT THE FACTS CONTAINED IN THE STIPULATION OF FACT (DEFENSE EXHIBIT A) WERE TRUE, SEE UNITED STATES V. CANTU, 30 M.J. 1088, 1090 (N.M.C.M.R.1989); UNITED STATES V. ENLOW, 26 M.J. 940, 945 (A.C.M.R.1988), AND DID NOT DISCUSS THE FACTS CONTAINED IN THE STIPULATION WITH APPELLANT ON THE RECORD, SEE UNITED STATES V. SAWINSKI, 16 M.J. 8Ó8, 811 (N.M.C.M.R.1983)? . The terminal element is that, under the circumstances, appellant’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. . Professor Arthur J. Keeffe of Cornell Law School was president of the General Court-Martial Review Board of the U.S. Navy from April 1946 to June 1947. The board reviewed over 2000 naval courts-martial and made recommendations for improvement of the court-martial system. A Bill to Unify, Consolidate, Revise, and Codify the Articles of War, the Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard, and to Enact and Establish a Uniform Code of Military Justice: Hearings on H.R. 2498 Before the Sub-comm. on Armed Forces, 81st Cong., 1st Sess. 837-38 (statement of Prof. Arthur John Keeffe, of Cornell Law School). . McCarthy held that noncompliance with Rule 11 results in prejudice requiring that the case be returned"
},
{
"docid": "21786470",
"title": "",
"text": "to warrant them. Since an Article 32 investigation investigates not offenses but charges, specifically those charges which, after preferral, are referred to it for investigation, the correct procedure when evidence of additional offenses arises during an investigation is to recommend to the appointing authority that additional charges be preferred and referred for investigation while the investigation is still in progress. See United States v. Everman, 40 C.M.R. 755 (A.B.R.), pet. denied, 40 C.M.R. 327 (C.M.A.1969); see also United States v. Louder, 7 M.J. 548 (A.F.C.M.R.), pet. denied, 7 M.J. 328 (C.M.A.1979). Alternatively, if the investigation has concluded, it may be reopened for the purpose of investigating the additional charges. Inasmuch as the appellant entered pleas without objecting to the reference for trial or moving for appropriate relief, any deficiencies in compliance with Article 32 in this case have been waived, even in the absence of an express waiver. Rules for Courts-Martial 601(d)(2) and 905(b)(1), Manual for Courts-Martial, United States, 1984. Under the circumstances of this particular case, we deem Charge I, Specification 3 (possession of an unauthorized armed forces identification card with intent to deceive) to be “fairly embraced” by Charge I, Specification 1 (impersonation of a petty officer by, inter alia, showing the credentials of a third-class petty officer). We direct that these specifications be consolidated, in accordance with United States v. Sorrell, 23 M.J. 122 (C.M.A.1986) (footnote 1). Since the military judge ruled them multiplicious for sentencing and so instructed the members, no reassessment is necessary. The findings of guilty, as thus modified, and the sentence, as approved on review below, are affirmed. Senior Judge MITCHELL and Judge HOLDER concur. ORDER ON RECONSIDERATION The Government has petitioned for reconsideration of a portion of this Court’s opinion in United States v. Bender, 32 M.J. 1002, (N.M.C.M.R. 22 March 1991), holding that charges preferred after the conclusion of an Article 32 investigation were referred without proper investigation but that any error was waived. While we question whether or not Rule 22, Courts of Military Review Rules of Practice and Procedure, confers upon the Government a right to petition for reconsideration"
},
{
"docid": "21685589",
"title": "",
"text": "disqualification and unlawful command influence line of cases have involved challenges to military trial and appellate judges for bias, lack of impartiality, prejudice and lack of judicial independence and integrity within the military justice system. The military law and judicial precedent is enlightening. First, the Court of Military Appeals has held that Congress intended that “no judge can participate in the adjudication of a case if he is not ‘a neutral and detached judge.’ ” United States v. Kincheloe, 14 M.J. 40, 48 (C.M.A.1982). Second, any relationship that casts suspicion on whether a military judge is fair or impartial provides a basis for an accused to seek his disqualification. Id. Third, Rule for Courts-Martial (R.C.M.) 902(b) identifies specific circumstances that are grounds for mandatory disqualification or recusal of military judges. R.C.M. 902(a) also provides for disqualification and recusal in more general terms, that is, when a military judge determines that under the circumstances of the ease before him, if the facts were known by a reasonable man, his impartiality might reasonably be questioned. A military judge’s denial of a challenge against him is reviewable for abuse of discretion. United States v. Allen, 31 M.J. 572 (N.M.C.M.R.1990). Furthermore, Articles 26, 10 U.S.C. § 826 and 66, when read in conjunction with Article 37, UCMJ, 10 U.S.C. § 837, as enforced by Article 98, UCMJ, 10 U.S.C. § 898, provide both the accused, see id., and the military judge, see e.g., Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328 (C.M.A.1988); United States v. Mabe, 30 M.J. 1254 (N.M.C.M.R.1990) (en banc), with a mechanism to bring to light, within the public forum of a court-martial, an attack on the military judge’s independence, or lack thereof, due to unlawful command influence—the perniciousness of which is the same whether it be direct or indirect. United States v. Hagen, 25 M.J. 78 (C.M.A.1987), cert. denied, 484 U.S. 1060, 108 S.Ct. 1015, 98 L.Ed.2d 981 (1988). Receipt of actual direct personal financial benefit by the judicial officers in Ward and Tumey was a concrete factual basis that demonstrated actual interest, bias, and prejudice, factors"
},
{
"docid": "11383917",
"title": "",
"text": "marks suggesting that the convening authority ever saw them. These are not magic boilerplate, and their absence alone is not error, Wilson, 33 M.J. at 513 n. 4, but their absence prevents us from relying on the inference that we described in United States v. Godreau, 31 M.J. 809 (A.F.C.M.R.1990) (en banc), pet. denied, 33 M.J. 178 (C.M.A.1991). We would ordinarily order the government to show cause why the action should not be set aside as premature. In most such cases, the government has been able to supplement the record with appropriate post-trial affidavits from which we can be sure that the convening authority considered the clemency matters. See United States v. Youngren, 28 M.J. 255 (C.M.A.1989) (summary disposition); Godreau, 31 M.J. 809; United States v. Kabelka, 30 M.J. 1136 (A.F.C.M.R.1990); United States v. Blanch, 29 M.J. 672 (A.F.C.M.R.1989). However, such an interlocutory measure is inappropriate and wasteful when other defects also need correction. With a second error affecting the convening authority’s review of this case, we find the better course is to remand the case for thorough rehabilitation instead of trying to repair it with appellate Band-Aids. The action of the convening authority is set aside as premature, and the convening authority must withdraw it. R.C.M. 1107(g). Thereafter the addendum to the staff judge advocate’s recommendations must be served upon the defense for comment before the convening authority may act anew. R.C.M. 1106(f)(7). The record will be returned to The Judge Advocate General for such further proceedings as he may direct. Senior Judge LEONARD and Judge RIVES concur. . Article 134, UCMJ, 10 U.S.C. § 934 (1988); Manual For Courts-Martial, United States, 1984, Pt. IV, para. 78. The military judge, sitting alone as a special court-martial, sentenced appellant to be discharged from the service with a bad-conduct discharge, to be confined for 75 days, to forfeit $427 pay per month for 2 months, and to be reduced to E-l. The convening authority approved the sentence as adjudged. . One wonders how significant this issue could have been. Appellant confessed, made restitution, joined a stipulation of facts, and pleaded guilty."
},
{
"docid": "7471120",
"title": "",
"text": "judge failed to advise the appellant during the providence inquiry that a fine could be imposed. We agree. The appendix to the pretrial agreement contains two paragraphs relevant to our decision: 2. The Convening Authority agrees to disapprove any sentence in excess of the following: Dismissal, total forfeiture of all pay and allowances, and confinement for 18 months. 4. The Convening Authority may approve any other sentence lawfully adjudged. The government argues that this language “specified that the convening authority could approve any other sentence lawfully adjudged, limiting only certain specified provisions, and appellant confirmed that he understood that a fine could be approved in this context.” In an earlier case involving this precise issue, this court held that “the analysis utilized by the Court of Military Appeals in United States v. Williams, 18 M.J. 186 (C.M.A.1984) is controlling.” United States v. Morales-Santana, 32 M.J. 557 (A.C.M.R.1990). In Williams, the Court of Military Appeals held that: Unless the pretrial agreement specifically mentions the possibility of a fine or there is other evidence that the accused was aware that a fine could be imposed, a general court-martial may not include a fine in addition to total forfeitures in the guilty-plea case unless the possibility of a fine has been made known to the accused during the providence inquiry. Id. at 189; accord Morales-Santana, 32 M.J. 557; United States v. Gibbs, 30 M.J. 1166 (A.C.M.R.1990). As the military judge failed to advise the appellant during the providence inquiry that a fine could be imposed and the pretrial agreement did not specifically provide that a fine could be imposed, we must set aside the convening authority’s action in approving the fine. In view of our decision to set aside the fine, there can be no imposition of confinement to enforce payment thereof. Therefore, we need not address the appellant’s remaining assignment of error. The court affirms only so much of the findings of guilty of Charge I and its Specification as finds that the appellant did, between September 1988 and 30 March 1990, wrongfully appropriate $17,922.26, in violation of Article 121, UCMJ. The"
},
{
"docid": "1085843",
"title": "",
"text": "PER CURIAM: Consistent with his pleas of guilty, the appellant was found guilty of two specifications of unauthorized absence, one specification of failing to obey a lawful order, and 18 specifications of making and uttering checks without sufficient funds in violation of Articles 86, 92, and 123a, respectively, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886, 892, 923a. A military judge sitting alone as a special court-martial sentenced the appellant to be confined for 120 days, to forfeit $500.00 pay per month for four months, to be reduced to pay grade E-l, and to be discharged with a bad-conduct discharge. Pursuant to a pretrial agreement, the convening authority suspended confinement in excess of 75 days, but otherwise approved the sentence as adjudged. The appellant assigns two errors to his court-martial. Both errors concern the qualifications of the military judge. In essence, appellant contends for the first time that his court-martial lacked jurisdiction: (1) because the military judge was not appointed in accordance with the Appointments Clause of the U.S. Constitution, and (2) because the military judge was not appointed as a military judge for a fixed term, as required by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. The second assignment of error was disposed of adversely to the appellant in United States v. Graf, 32 M.J. 809 (N.M.C.M.R 1990), petition granted, 34 M.J. 169 (C.M.A.1991), and it will not be discussed further. Article II, Section 2, Clause 2 of the Constitution provides: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Assuming arguendo that this provision of the Constitution applies to military judges, the fact is that all military judges must be commissioned officers"
},
{
"docid": "1117257",
"title": "",
"text": "UCMJ, McCarthy, Boykin, Care, and Wimberly. Rather than being a retreat from Care, they set out procedures that ensure compliance with Care, procedures that derive from our many years of trial and appellate experience with thousands of providence inquiries. VIII. We have considered the assigned errors and find no merit in them. Accordingly, the findings and sentence, as approved on review below, are affirmed. Chief Judge LARSON, Senior Judges WELCH, ORR, REED, MOLLISON, JONES, and Judges HAMILTON, DeCICCO, and GUERRERO concur. . I. APPELLANT’S PLEAS OF GUILTY ARE IMPROVIDENT IN THAT THE RECORD FAILS TO ESTABLISH AN ELEMENT OF THE OFFENSES AND THE REQUISITE FACTUAL PREDICATE. II. THE CONVENING AUTHORITY ERRED BY ACTING TO APPROVE A DISMISSAL BASED UPON A RECORD LACKING ANY INDICATION OF RECEIPT OF A STAFF JUDGE ADVOCATE’S PRETRIAL ADVICE LETTER, PRIOR TO REFERRAL OF APPELLANT’S CASE TO TRIAL BY GENERAL COURT-MARTIAL. III. THE CONVENING AUTHORITY HAS FAILED TO FOLLOW THE TERMS OF APPELLANT’S PRETRIAL AGREEMENT AND ITS INCORPORATED WAIVER OF AN INVESTIGATION UNDER ARTICLE 32, UCMJ. IV. THE COURT-MARTIAL HAS NO JURISDICTION BECAUSE THE MILITARY JUDGE’S LACK OF A FIXED TERM OF OFFICE LEFT THE MILITARY JUDGE INSUFFICIENTLY INDEPENDENT TO SATISFY THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE. BECAUSE THE ERROR IS JURISDICTIONAL AND THE RECORD CONTAINS NO EVIDENCE OF A KNOWING WAIVER OF APPELLANT’S RIGHT TO AN INDEPENDENT MILITARY JUDGE, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. (CITATION AND FOOTNOTE OMITTED.) V. THE COURT-MARTIAL LACKED JURISDICTION BECAUSE APPELLANTS MILITARY JUDGE WAS DESIGNATED IN VIOLATION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION. BECAUSE THIS ERROR IS JURISDICTIONAL, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. (CITATIONS AND FOOTNOTE OMITTED.) . DOES THE PROVIDENCE INQUIRY CONTAIN AN ADEQUATE FACTUAL BASIS TO SUPPORT APPELLANT’S GUILTY PLEAS WHEN THE MILITARY JUDGE DID NOT ASCERTAIN FROM APPELLANT THAT THE FACTS CONTAINED IN THE STIPULATION OF FACT (DEFENSE EXHIBIT A) WERE TRUE, SEE UNITED STATES V. CANTU, 30 M.J. 1088, 1090 (N.M.C.M.R.1989); UNITED STATES V. ENLOW, 26 M.J. 940, 945 (A.C.M.R.1988), AND DID NOT DISCUSS THE FACTS CONTAINED IN THE STIPULATION"
},
{
"docid": "1139231",
"title": "",
"text": "trial after it was authenticated, he requested the staff judge advocate to withdraw the recommendations to allow “comment and review,” but was refused. Although he cites no harm resulting from the fact that his counsel was unable to review the record before authentication, Sergeant Plott urges us to “find error.” We decline to issue what amounts to a declaratory judgment. Our guiding principles must flow from the UCMJ, Article 59(a) of which says “A finding or sentence of court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” V. FIXED TERMS FOR TRIAL AND APPELLATE MILITARY JUDGES In his final assertion of error, Sergeant Plott claims he was denied the due process and equal protection under the law afforded by the Fifth Amendment to the Constitution because he was denied trial and appellate military judges who enjoy the protection of fixed terms. The Court of Military Appeals has addressed this issue, and found a fixed term of office is not required as a matter of constitutional due process for military judges, trial or appellate. United States v. Graf, 35 M.J. 450 (C.M.A.1992). The issue is now pending before the Supreme Court. United States v. Weiss, 36 M.J. 224 (C.M.A.1992), cert. granted, — U.S. —, 113 S.Ct. 2412, 124 L.Ed.2d 635 (1993). Absent a contrary decision by the highest court, the Court of Military Appeals decision in Graf guides our resolution of this issue. VI. CONCLUSION The findings of guilty have been previously found correct in law and fact and affirmed. Plott, 35 M.J. at 519. After examining the record of trial, the assignment of errors, and the government’s reply, we conclude that the sentence adjudged on rehearing is appropriate and no error prejudicial to the substantial rights of the accused occurred. Accordingly, the findings and the sentence are AFFIRMED. Senior Judge JOHNSON (who participated in this decision before his reassignment from the Court) and Judge YOUNG concur. . We are dubious that a new pretrial advice was required for the rehearing on sentence in this"
},
{
"docid": "11285053",
"title": "",
"text": "note several references to a “flier” which was presented to the court members but which was never marked as an appellate exhibit or appended to the record of trial. After examining the entire record, including the military judge’s preliminary instructions, the stipulation of fact, counsel’s arguments, and the appellant’s unsworn statement, we find that the absence of the flier is not a substantial omission, and we hold that the record of trial is verbatim notwithstanding the failure to include the flier as an appellate exhibit. United States v. Harper, 25 M.J. 895 (A.C.M.R.1988), petition denied, 27 M.J. 418 (C.M.A.1988); United States v. Barnes, 12 M.J. 614 (N.M.C.M.R.1981), aff'd, 15 M.J. 121 (C.M.A.1983). We ordered briefs on the question whether a new post-trial recommendation and action was required because of the staff judge advocate’s reference to the appellant’s race and sex. Reference to an appellant’s race and sex in the post-trial recommendation is improper. United States v. Phillips, 27 M.J. 402 (C.M.A.1988) (summary disposition); United States v. Holt, 27 M.J. 402 (C.M.A.1988) (summary disposition). See also United States v. Brannon, 33 M.J. 179 (C.M.A.1991); United States v. Brice, 33 M.J. 176 (C.M.A.1991). In this case, the appellant and his counsel did not object to the inclusion of race and sex data, thereby waiving the error. Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 1106(f)(6). We have considered the issues raised personally by the appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), and have determined that they are without merit. For the reasons discussed above, the purported findings of not guilty of Specifications 5 and 6 of Charge II and Specification 1 of Charge III are declared null and void. On consideration of the entire record, we hold that the findings of guilty to Specifications 1, 2 (by exceptions and substitutions), 3, and 4 (by exceptions and substitutions) of Charge II and Charge II and Specification 2 of Charge III and Charge III, and the sentence are correct in law and fact. Accordingly, those findings of guilty and the sentence are affirmed. Judge ISKRA and Judge CREAN concur."
},
{
"docid": "1085845",
"title": "",
"text": "of the armed forces of the United States and, as such, have by law already been appointed by the President. Art. 26(b), UCMJ, 10 U.S.C. § 826(b); 10 U.S.C. §§ 101(4), 101(15), 531, 593, 624, 5001(a)(6), 5912. Depending upon grade, component, and presence on the active-duty list, some of these commissioned officers by law must also have had their appointments confirmed by and with the advice and consent of the Senate. 10 U.S.C. §§ 531, 593, 624, 5912. All military judges must be lawyers. Art. 26(b), UCMJ; 10 U.S.C. § 826(b). The duties these commissioned officers are detailed to perform as military judges are within the sphere of their official duties and are germane to the office they already hold. A second appointment from the President to a commissioned officer to perform the duties of a military judge is simply not required. Cf. Shoemaker v. United States, 147 U.S. 282, 299-301, 13 S.Ct. 361, 390-391, 37 L.Ed. 170, 185 (1892) (Army officers (engineers) were not required to obtain a second appointment to perform duties on a commission created by Congress to acquire lands for a park). Accordingly, we conclude the appellant’s first assignment of error is also without merit. The findings and sentence, as approved on review below, are affirmed. . I. APPELLANTS COURT-MARTIAL LACKED JURISDICTION BECAUSE THE MILITARY JUDGE WAS DESIGNATED IN VIOLATION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION. See Generally U.S. Const. Art. II, § 2, cl. 2; Freytag v. Commissioner of Internal Revenue, — U.S. -, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991). BECAUSE THIS ERROR IS JURISDICTIONAL, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. II. THE COURT-MARTIAL HAD NO JURISDICTION BECAUSE THE MILITARY JUDGE'S LACK OF A FIXED TERM OF OFFICE LEFT THE MILITARY JUDGE INSUFFICIENTLY INDEPENDENT TO SATISFY THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE. But see United States v. Graf, 32 MJ. 809 (N.M.C.M.R.1990), petition granted, 34 MJ. 169 (C.M.A.1991). BECAUSE THE ERROR IS JURISDICTIONAL AND THE RECORD CONTAINS NO EVIDENCE OF A KNOWING WAIVER OF APPELLANT'S RIGHT TO AN INDEPENDENT MILITARY JUDGE, THE ISSUE IS NOT WAIVED"
},
{
"docid": "17135812",
"title": "",
"text": "requiring two daily injections and four “finger sticks” per day to monitor his blood sugar. While in pretrial confinement following his apprehension, he was discovered unconscious and admitted to Jacksonville Naval Hospital after a hypoglycemic episode where he remained a patient from 22 to 28 October. Two doctors cautioned that if appellant were to be confined it would have to be in a facility staffed with medical personnel twenty-four hours a day and with ready access to emergency transportation to a hospital. Trial defense counsel negotiated with the convening authority and obtained a pretrial agreement wherein the appellant would accept whatever fine was imposed and any confinement in excess of 90 days was to be suspended. The appellant was advised during the providence inquiry that the maximum punishment authorized included the possibility of a fine, and his defense counsel argued on sentencing that confinement was ill advised due to appellant’s medical condition and suggested that the court-martial “limit any forfeitures or fines.” Record at 32. That the appellant would now cry “foul” is untenable. Although a fine should not normally be adjudged in the absence of unjust enrichment, where other good reasons exist fines are appropriate. See United States v. Czeck, 28 M.J. 563 (N.M.C.M.R.), petition denied, 29 M.J. 275 (C.M.A.1989). The trial counsel agreed that confinement was neither convenient nor prudent in this case. A fine was among the range of penalties authorized by law and contemplated by the appellant and his counsel. The appellant has provided no evidence that the fine is either oppressive or that he lacks the ability to pay. We specifically find that the fine was appropriate under the circumstances of this case. The appellant’s second and third assignments of error are also without merit. See United States v. Graf, 32 M.J. 809, (N.M.C.M.R.1990), aff'd, 35 M.J. 450 (C.M.A.1992); United States v. Coffman, 35 M.J. 591 (N.M.C.M.R.1992) (per curiam). Accordingly, the findings and sentence as approved on review below are affirmed. Senior Judges STRICKLAND and ORR concur. . I. A SENTENCE WHICH INCLUDES A §1,500 FINE IS INAPPROPRIATE IN THIS CASE. II. THE COURT-MARTIAL HAD"
},
{
"docid": "17119586",
"title": "",
"text": "and that the convening authority had inadvertently lined through the wrong number. We find these conclusions well supported in the record and accept them for the purpose of determining the merits of this petition. The military judge then granted the Government’s motion to amend the actual agreement which would authorize the convening authority to suspend confinement in excess of 24 months. The petitioner now turns to this Court to enforce the express written terms of the pretrial agreement through the mechanism of extraordinary relief. Were we to grant the petition, the appropriate procedure would be to return the record of trial to the military judge to correct his ruling in accordance with this opinion because he has not yet authenticated the record and, therefore, still retains the power to revise the proceedings. United States v. Brickey, 16 M.J. 258 (C.M.A. 1983). II This Court has the authority to grant the relief requested under the All Writs Act, 28 U.S.C. § 1651(a), to ensure the integrity of the judicial process. Dettinger v. United States, 7 M.J. 216 (C.M.A. 1979); United States v. Thomas, 33 M.J. 768 (N.M.C.M.R.1991). However, a Writ of Mandamus is a drastic remedy that should be used only in truly extraordinary situations. United States v. Lobelia, 15 M.J. 228 (N.M.C.M.R.1983). In particular, it should not be invoked in cases where other authorized means of appeal or administrative review exist. Coffey v. Commanding Officer, USS Charleston, 33 M.J. 938 (N.M.C.M.R.1991). To justify extraordinary relief, the petitioner bears the burden of demonstrating that he is entitled to it as a clear and indisputable right. Thomas, 33 M.J. at 770; Smithee v. Vorbach, 25 M.J. 561 (C.G.C.M.R.1987). In this case, to satisfy this burden, the petitioner must demonstrate to this Court that he is clearly and indisputably entitled to enforcement of the express written confinement limitation in his pretrial agreement even though that limitation appears as the result of a mistake and does not reflect the actual confinement limitation to which all parties had originally agreed. In addition, he must demonstrate that enduring the normal pace of appellate review under Article"
},
{
"docid": "17135813",
"title": "",
"text": "a fine should not normally be adjudged in the absence of unjust enrichment, where other good reasons exist fines are appropriate. See United States v. Czeck, 28 M.J. 563 (N.M.C.M.R.), petition denied, 29 M.J. 275 (C.M.A.1989). The trial counsel agreed that confinement was neither convenient nor prudent in this case. A fine was among the range of penalties authorized by law and contemplated by the appellant and his counsel. The appellant has provided no evidence that the fine is either oppressive or that he lacks the ability to pay. We specifically find that the fine was appropriate under the circumstances of this case. The appellant’s second and third assignments of error are also without merit. See United States v. Graf, 32 M.J. 809, (N.M.C.M.R.1990), aff'd, 35 M.J. 450 (C.M.A.1992); United States v. Coffman, 35 M.J. 591 (N.M.C.M.R.1992) (per curiam). Accordingly, the findings and sentence as approved on review below are affirmed. Senior Judges STRICKLAND and ORR concur. . I. A SENTENCE WHICH INCLUDES A §1,500 FINE IS INAPPROPRIATE IN THIS CASE. II. THE COURT-MARTIAL HAD NO JURISDICTION BECAUSE THE MILITARY JUDGE’S LACK OF A FIXED TERM OF OFFICE LEFT THE MILITARY JUDGE INSUFFICIENTLY INDEPENDENT TO SATISFY THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE. But see United States v. Graf, 32 M.J. 809 (N.M.C.M.R.1990), petition granted, 34 M.J. 169 (C.M.A.1991). BECAUSE THE ERROR IS JURISDICTIONAL AND THE RECORD CONTAINS NO EVIDENCE OF A KNOWING WAIVER OF APPELLANT’S RIGHT TO AN INDEPENDENT MILITARY JUDGE, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. III. THE GENERAL COURT-MARTIAL LACKED JURISDICTION BECAUSE APPELLANT'S MILITARY JUDGE WAS DESIGNATED IN VIOLATION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION. See generally U.S. Const, art. II, § 2, cl. 2; Freytag v. Commissioner of Internal Revenue, — U.S. -, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991); but see United States v. Coffman, 35 M.J. 591 (N.M.C.M.R.1992). BECAUSE THIS ERROR IS JURISDICTIONAL, THE ISSUE IS NOT WAIVED EVEN THOUGH IT WAS NOT RAISED AT TRIAL. [Footnote omitted.]"
},
{
"docid": "12050206",
"title": "",
"text": "court-martial of attempted armed robbery, unauthorized absence, various failures to go to his appointed place of duty, assault with a knife and breaking restriction in violation of Articles 80, 86, 128 and 134, UCMJ, 10 U.S.C. §§ 880, 886, 928, 934. The military judge sentenced him to confinement for 6 months, forfeiture of $396.00 pay per month for 6 months, reduction to the lowest enlisted pay grade, and a bad-conduct discharge. The trial took place on 15 November 1984. After proceedings in revision, the convening authority approved the sentence on 6 February 1985. The convening authority’s action indicates that the record of trial was forwarded to the Navy-Marine Corps Appellate Review Activity, Office of the Judge Advocate General, Washington, DC. The appellant has been on appellate leave since 1985. Until the filing of this petition in September 1995, over 10 years since his conviction, RMSN Ross’ case has not been docketed with this Court, and the Government has indicated that the case cannot be docketed because, after searching high and low, it cannot locate the record of trial, and it is not able to produce another or a copy of the original. Discussion It is well established that this Court has power to grant the requested relief under the All Writs Act, 28 U.S.C. § 1651(a), to ensure the integrity of the judicial process. Dettinger v. United States, 7 M.J. 216 (C.M.A.1979); Aviz v. Carver, 36 M.J. 1026 (N.M.C.M.R.1993). Before granting such relief, however, the petitioner must demonstrate that he is clearly and indisputably entitled to the relief as a matter of right. Aviz; United States v. Thomas, 33 M.J. 768 (N.M.C.M.R.1991). Extraordinary relief should not be invoked in cases where other authorized means of appeal or administrative review exist. Aviz (citing Coffey v. Com manding Officer, USS Charleston, 33 M.J. 938 (N.M.C.M.R.1991)). In this case, the petitioner seeks a writ of error coram nobis. This writ was traditionally used to correct factual errors, but it now encompasses constitutional and other fundamental errors, including claims sounding in due process. Garrett v. Lowe, 39 M.J. 293 (C.M.A.1994). It provides extraordinary relief"
},
{
"docid": "12086718",
"title": "",
"text": "unreasonable multiplication of charges against one person. See, Discussion following Rule for Courts-Martial 307(c)(4), MCM. What happened here was essentially a single course of theft of Government funds over an extended period and not eight thefts. Therefore, the eight specifications shall be merged into one. We do not find any prejudice to the substantial rights of the appellant because the military judge considered the eight specifications as a single offense for sentencing purposes. Record at 23. Issues III-VI The remaining assignments of error lack merit. United States v. Weiss, 36 M.J. 224 (C.M.A.1992), cert. granted, — U.S. -, 113 S.Ct. 2412, 124 L.Ed.2d 635 (1993); United States v. Graf, 35 M.J. 450 (C.M.A.1992). Disposition In light of the foregoing, we affirm a finding of guilty to Article 121 and a single specification that the appellant did, at Naval Air Station, Fallon, Nevada, from 16 August 1991 to 25 March 1992, steal Basic Allowance for Quarters (with dependents) and Variable Housing Allowance, of a total value of about $2,668.35, property of the U.S. Government. The remaining finding of guilty under Article 107 is also affirmed. Upon reassessment, we apply the principles of United States v. Peoples, 29 M.J. 426 (C.M.A.1990) and United States v. Sales, 22 M.J. 305 (C.M.A.1986), and affirm the sentence as approved on review below. A new court-martial promulgating order shall be issued to reflect the above modification. Senior Judge REED and Judge LAWRENCE concur. . I. THE MILITARY JUDGE ERRED IN ACCEPTING A GUILTY PLEA TO LARCENY OF BAQ AND VHA WHERE APPELLANT WAS INITIALLY LAWFULLY ENTITLED TO THOSE ALLOWANCES BUT THEREAFTER REMAINED SILENT AS TO A CHANGE IN STATUS WHICH WOULD HAVE DISQUALIFIED HIM FROM CONTINUED ENTITLEMENT. II. SPECIFICATIONS 1 THROUGH 8 ARE AN UNREASONABLE MULTIPLICATION OF CHARGES INASMUCH AS THEY DESCRIBE A SINGLE, CONTINUOUS COURSE OF CONDUCT (THE CONTINUED RECEIPT OF BAQ AT THE \"WITH DEPENDENTS\" RATE AND VARIABLE HOUSING ALLOWANCE) BASED ON REPRESENTATIONS MADE TO PERSONNEL OFFICIALS PRIOR TO AUGUST 1991. III. THE COURT-MARTIAL DID NOT HAVE JURISDICTION BECAUSE THE MILITARY JUDGE WAS NOT APPOINTED TO A FIXED TERM OF OFFICE. (CITATION OMITTED.) IV."
},
{
"docid": "12059089",
"title": "",
"text": "ORR, Senior Judge: Pursuant to his pleas, the appellant was found guilty of disobeying a prohibition against the possession of drug paraphernalia and using LSD in violation, respectively, of Articles 92 and 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 912a. He was sentenced by the military judge to confinement for 2 months, the forfeiture of $540.00 pay per month for 2 months, reduction to pay grade E-l, and a bad-conduct discharge. The appellant had negotiated a pretrial agreement with the convening authority, however, that provided for the suspension of any punishment to confinement and any forfeitures for 6 months from the date of trial. When and how this agreement and the suspensions were carried out are the basis for the first two of the appellant’s seven assignments of error. Following the U.S. Supreme Court decision in Weiss v. United States, — U.S. -, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994), the appellant withdrew Assignments of Error III through VI. The seventh is also without merit. See United States v. Mitchell, 39 M.J. 131 (C.M.A.1994). In the first assigned error, the appellant complains that the officer exercising general court-martial jurisdiction (OEGCMJ) over his unit improperly vacated the suspensions for misconduct that occurred after trial but prior to the convening authority’s action on the case. See United States v. Kendra, 31 M.J. 846 (N.M.C.M.R.1990), pet. denied, 32 M.J. 317 (C.M.A.1991); Rule for Courts-Martial (R.C.M.) 1109(b)(1). In the second, the appellant complains that his due process rights in connection with the vacation hearing were violated by the requirement that the special court-martial convening authority serve as the hearing officer. See R.C.M. 1109(d)(1)(A). We have concluded that the first is without merit, and we do not reach the constitutional issue in the second because the Government did not satisfy the requirements of the Manual for Courts-Martial, United States, 1984 (M.C.M.), in conducting the hearing and acting on the recommendation. We have conducted this review of the vacation proceedings as part of our authorization under Article 66, UCMJ, 10 U.S.C. § 866. See United States v. May, 49 C.M.R. 625, 1974"
}
] |
667868 | basis, to reflect such increase. In the defendant’s initial brief supporting its motion for summary judgment, the defendant asserted that the plaintiff was not entitled to recover on the operating costs escalation claim because the plaintiff had failed to exhaust its administrative remedy with respect to this claim. At oral argument, however, defendant’s counsel stated that the defendant was no longer relying on this contention as a defense. In this connection, it is noted that the controversy between the parties concerning this claim seemingly involves the proper construction of the operating costs escalation clause of the lease. This is a legal question (see Astro-Space Laboratories, Inc. v. United States, 200 Ct.Cl. 282, 292-93, 470 F.2d 1003, 1008 (1972); REDACTED The only administrative remedy which the Tucker Act, as supplemented by the Wunderlich Act (41 U.S.C. §§ 321, 322 (1982)) and the “Disputes” clause of the lease, required the plaintiff to pursue related to “any dispute concerning a question of fact.” Such a dispute had to be submitted to the contracting officer, whose decision was final and conclusive unless a timely appeal was taken to the head of the agency (or his duly authorized representative). The decision on an appeal was final and conclusive, except that judicial review could be obtained to determine whether, on the basis of the administrative record (see United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d | [
{
"docid": "17029321",
"title": "",
"text": "denied, defendant’s cross-motion for summary judgment is granted, and plaJintiff’s petition is dismissed. Defendant’s counterclaim is also dismissed. OPINION OP COMMISSIONER Wood, Commissioner: This case is before the court on cross-motions for summary judgment for review, under Wunder-lich Act standards, of a decision of the Armed Services Board of 'Contract Appeals denying plaintiff’s claim for an equitable adjustment for an alleged constructive change. It arises out of a 1966 contract (DSA 100-3183) between plaintiff and defendant (acting through the Defense Personnel Support Center, Defense Supply Agency), for the manufacture and delivery of 14,060 units of “Armor Groin Class I, Various Sizes.” Throughout (and for some time after) the “bidding” which led to the negotiated contract in suit, plaintiff interpreted defendant’s “bid package” to mean that each of the “Waist” sizes of Class 1 groin armor called for (designated 28, 30, 32, 34,36,38,40, and 42) would be manufactured from a “pattern size” bearing a like number. After contract award, however, plaintiff discovered that under defendant’s interpretation of the contract documents, Class 1 groin armor “Waist” sizes designated 28 through 42 were to.be fabricated from pattern sizes-36 through 50, respectively. At about the same time, defendant learned of plaintiff’s differing interpretation. In consequence, plaintiff was duly directed to manufacture the groin armor in accordance with defendant’s view of the contract requirements. In rejecting plaintiff’s claim for an equitable adjustment for the alleged “change”, the Board concluded that plaintiff’s interpretation of the contract “is unreasonable and cannot be upheld.” The administrative decision involved the interpretation of the contract, and was therefore “on a question of law”, within the meaning of Section 2 of the Wunderlich Act, 68 Stat. 81, 41 U.S.C. § 322 (1964). Thus, it is neither entitled to finality thereunder nor binding on this court. Mountain, Home Contractors v. United States, 192 Ct. Cl. 16, 425 F. 2d 1260 (1970); Gorn Corp. v. United States, 191 Ct. Cl. 560, 424 F. 2d 588 (1970). Plaintiff, seeking- to invoke the “oft-repeated and much-applied rule” that where “some substantive provision of a government-drawn agreement is fairly susceptible of a certain construction and the"
}
] | [
{
"docid": "4409421",
"title": "",
"text": "in favor of the Government withstand Wunder-lich review. Plaintiff has not shown legal error in either the \"Horse Creek” of \"Failor Ridge” Board decision. Accordingly, after consideration of the briefs and record, and after hearing oral argument, plaintiffs motion for summary judgment is denied, defendant’s cross-motion for summary judgment is granted, and the petition is dismissed. The Wunderlich Act provides: 41 U.S.C. § 321 (1970). Limitation on pleading contract provisions relating to finality; standards of review. No provision of any contract entered into by the United States, relating to the finality or conclusiveness of any decision of the head of any department or agency or his duly authorized representative or board in a dispute involving a question arising under such contract, shall be pleaded in any suit now filed or to be filed as limiting judicial review of any such decision to cases where fraud by such official or his said representative or board is alleged: Provided, however, That any such decision shall be final and conclusive unless the same is fraudulent (footnote omitted) or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence. 41 U.S.C. § 322 (1970). Contract-provisions making decisions final on questions of law. No Government contract shall contain a provision making final on a question of law the decision of any administrative official, representative, or board. Plaintiff argues that the court should not attach any weight to its acceptance, without protest, of the first two redeterminations. Plaintiffs position is based on the claim that the two redeterminations were not before the Board and are not, therefore, part of the administrative record. While we are inclined to agree with plaintiff, United States v. Carlo Bianchi & Co., Inc., 373 U.S. 709,714 (1963), we do not decide this question because we do not consider the first two redeterminations in reaching our conclusion. The Forest Service Manual provides, in pertinent part: FSM § 2427.35 Rate Redetermination When Contract Period is Extended. If the contract is extended at the request of the purchaser a rate redetermination will be made"
},
{
"docid": "4226334",
"title": "",
"text": "for a finding that plaintiff was delayed for any lesser period than that represented by the suspension of the central feature of this project (the dam) from April 20,1960 to June 12,1961. Plaintiff is therefore entitled to the additional claimed extension of 54 calendar days. Defendant no longer contests the determination that the delay amounted to 419 days, from April 20, 1960, to June 12, 1961. The precise amount Is not presently at Issue before the court. This is a so-called “civil works” contract of the Army. The “Disputes” article therein contained provides for appeal from an adverse decision “concerning a question of fact” to the Secretary or his duly authorized representative, and the latter is defined as the “Chief of Engineers, Department of the Army, or an individual or board designated by him.” The decision of the latter “shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. * * * “(b) This ‘Disputes’ clause does not preclude consideration of law questions in connection with decisions provided for in paragraph (a) above: Provided, That nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law.” The Wunderlich Act, 68 Stat. 81, 41 U.S.C. §§ 321-22 (1964 ed.), as interpreted by United States v. Carlo Bianchi & Co., 373 U.S. 709 (1963). See also United States v. Utah Constr. & Mining Co., 384 U.S. 394 (1966) and United States v. Anthony Grace & Sons, Inc., 384 U.S. 424 (1966). Authorizing the contracting officer to suspend all or part of the work for the convenience of the Government, and requiring an adjustment of contract price and time of performance under the circumstances described therein. Providing for an equitable adjustment of contract price and performance time should the contractor encounter subsurface or latent physical conditions at the site differing materially from those indicated in the contract. Authorizing the contracting officer to make"
},
{
"docid": "23031250",
"title": "",
"text": "for any such alleged breach. “(b) Increased costs of shutdown for the winter of 1954-55.” Defendant has asked us to review that portion of the Trial Commissioner’s order which is quoted above. The principal issue before us is raised in the review of paragraph 2(a) of the Commissioner’s order. The contract appeals board made factual determinations on a claim as to which the board could have granted complete relief under the Changes clause of the contract. However, the predominant issue decided by the board was a question of law, e. g., the interpretation of the contract provisions. In these circumstances, is plaintiff entitled to a de novo trial on the board’s factual determinations that are directly related to its decision on a question of law? This question was reserved in the previous decisions of this court in WPC Enterprises, Incorporated v. United States, 163 Ct.Cl. 1, 323 F.2d 874 (1963), and Utah Construction Mining Co. v. United States, Ct.Cl., 339 F.2d 606, December 11, 1964, among others. In resolving the issue we are called upon to outline a judicial procedure which accords with the letter and spirit of the Wunderlich Act, 41 U.S.C. §§ 321, 322, and the decision of the Supreme Court in United States v. Carlo Bianchi & Co., Inc., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed. 2d 652 (1963). We are mindful of the fact that there is no one solution of the problem and that it is impossible to announce a rule that can be applied uniformly and without exception in every case in which a related question may be presented. However, the situation now before us arises frequently, and we shall therefore undertake to state the procedure which should generally be followed in such cases in this court. The terms “scope of trial” and “scope of review” have been used interchangeably and, although the two terms are related, it is essential to distinguish between them. The Wunderlich Act prescribes the scope of review on questions of fact in disputes that arise under the contract; it also sets forth the principles for review of issues"
},
{
"docid": "13657087",
"title": "",
"text": "S.Ct. 1000, 1003, 90 L.Ed. 1192 (1945) the Court said of the Disputes Clause: “Solely through its operation may claims be made and adjudicated as to matters arising under the contract. * * * [a]nd in the absence of some clear evidence that the appeal procedure is inadequate or unavailable, that procedure must be pursued and exhausted before a contractor can be heard to complain in a court.” See also United States v. Blair, 321 U.S. 730, 64 S.Ct. 820, 88 L.Ed. 1039 (1944); United States v. Peter Kiewit Sons’ Co., 345 F.2d 879, 884 (8 Cir. 1965). . The Act overcame the decision in United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951), which held that departmental decisions under the Disputes Clause as then written were final unless founded on fraud. See United States v. Carlo Bianchi & Co., Inc., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963). The Act provides: “No provision of any contract entered into by the United States, relating to the finality or conclusiveness of any decision of the head of any department or agency or his duly authorized representative or board in a dispute involving a question arising under such contract, shall be pleaded in any suit now filed or to be filed as limiting judicial review of any such decision to cases where fraud by such official or his said representative or board is alleged : Provided, however, That any such decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” 41 U.S.C. § 321. . This point was made in McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 96 L.Ed. 26 (1951), but was restricted to the question whether the cause of action did not arise until the administrative decision was made."
},
{
"docid": "23031251",
"title": "",
"text": "to outline a judicial procedure which accords with the letter and spirit of the Wunderlich Act, 41 U.S.C. §§ 321, 322, and the decision of the Supreme Court in United States v. Carlo Bianchi & Co., Inc., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed. 2d 652 (1963). We are mindful of the fact that there is no one solution of the problem and that it is impossible to announce a rule that can be applied uniformly and without exception in every case in which a related question may be presented. However, the situation now before us arises frequently, and we shall therefore undertake to state the procedure which should generally be followed in such cases in this court. The terms “scope of trial” and “scope of review” have been used interchangeably and, although the two terms are related, it is essential to distinguish between them. The Wunderlich Act prescribes the scope of review on questions of fact in disputes that arise under the contract; it also sets forth the principles for review of issues of law. However, the act is silent on the scope of trial in the courts. In the Bianchi case, the Supreme Court has instructed us on at least one facet of the scope of trial, i. e., when an issue of fact has been administratively decided on a dispute arising under the contract and within the scope of the Disputes clause, a de novo trial may not be held on the facts thus determined. We believe that efficiency and economy dictate that a complete record be made before the administrative tribunal which, under the contract, is authorized to decide the particular dispute. As a practical matter, questions of law and fact cannot readily be segregated in preparing and presenting evidence at a hearing or trial. The disposition of claims, which the contract authorizes the appeals-boards to decide, will be expedited if the parties make a complete record at a board hearing in order that the most appropriate action can be taken at that level. Where relief is available to the contractor under a provision -of"
},
{
"docid": "19341482",
"title": "",
"text": "accepts that it is liable for breach of contract, appealing only with regard to the amount of damages. SUFI cross-appeals, seeking additional damages. We have jurisdiction under 28 U.S.C. § 1295(a)(3). DISCUSSION We review the Board decision in this case under the Wunderlich Act, previously codified at 41 U.S.C. §§ 321-322. Although the Act has been repealed, the repeal does not affect this case — involving judicial review of an administrative decision in a government-contract case that the parties agree is within the Tucker Act and outside the Contract Disputes Act— because SUFI initiated these proceedings at the Board before the repeal. Pub.L. No. 111-350, 124 Stat. 3677, 3855, 3859 (Jan. 4, 2011). Under the Wunderlich Act, the Board’s “decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence,” 41 U.S.C. § 321 (2006), and “[n]o Government contract shall contain a provision making final on a question of law the decision of any administrative official, representative, or board,” id. § 322. Although cases subject to the Act involve contract disputes, the judicial proceeding is one of judicial review of agency action. As relevant here, in applying the express statutory standard, we, like the Court of Federal Claims, decide legal issues de novo, review the Board’s factual findings for lack of substantial evidence, and ensure that the Board’s reasoning was not “capricious or arbitrary.” See Granite Const. Co. v. United States, 962 F.2d 998, 1001 (Fed.Cir.1992). The corollaries for issues that involve factual findings and record evidence are familiar. In United States v. Carlo Bianchi & Co., 373 U.S. 709, 716-17, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963), the Supreme Court held that a court reviewing a Wun-derlich Act case is limited to the administrative record and may not take new evidence. Shortly thereafter, the Court clarified that, “[wjhen the Board fails to reach and decide an issue because it disposes of the appeal on another ground,” the reviewing court, if it later rejects the relied-on ground, should generally"
},
{
"docid": "21396549",
"title": "",
"text": "II-IV must be denied because those claims also are not cognizable or redressable under any contract clause. Finally, plaintiff contends that its cross-motion for summary judgment on the issue of liability under Count I must be granted because DOE’s failure to begin SNF disposal services by January 31, 1998 is, as a matter of law, a breach of Article II. Briefing was completed on August 13,1998 and oral argument was held on September 16,1998. Supplemental briefing on the issue of whether relief is available under the contract was completed on October 8,1998. II. DISCUSSION a. Legal Background Regarding the Disputes Clause As stated above, aside from the certification requirement for claims exceeding $50,-000, Article XVI of the Standard Contract is similar to the disputes clause used in government contracts before passage of the CDA. DOE decided to utilize the pre-CDA dispute resolution process after concluding that the CDA was inapplicable. Therefore, legal principles relating to the pre-CDA clause and dispute resolution process apply here and are summarized below. The pre-CDA disputes clause establishes an administrative mechanism for adjudicating claims “arising under” the contract. Such claims must be submitted to the CO whose decision is final and conclusive unless appealed to the agency board of contract appeals (“board”). E.g., 10 C.F.R. § 961.11, Art. XVI H A. If the contractor is dissatisfied with the board’s decision, only then may it seek relief in the proper court. See Nager Elec. Co. v. United States, 177 Ct.Cl. 234, 251-52, 368 F.2d 847, 859 (1966). The scope of judicial review is limited to the administrative record developed by the board. United States v. Carlo Bianchi & Co., 373 U.S. 709, 714, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963). Under the Wunderlich Act, 41 U.S.C. §§ 321-22 (1994), the board’s factual findings will not be disturbed unless shown to be fraudulent, arbitrary or capricious, so grossly erroneous as necessarily to imply bad faith, or unsupported by substantial evidence. 41 U.S.C. § 321. The board’s legal determinations are not entitled to finality, however, and must be resolved independently by the court. 41 U.S.C. § 322; 10"
},
{
"docid": "11872316",
"title": "",
"text": "F.2d 926 (1959); District of Columbia v. Heman Ward, Inc., 261 A.2d 836 (D.C.C.App.1970). Under this “substantial evidence” rule, the law of Government contracts has become assimilated to doctrines of administrative law. United States v. Carlo Bianchi & Co., Inc., 373 U.S. 709, 715, 83 S.Ct. 1409, 1413, 10 L.Ed.2d 652, 657 (1963). However, the decision of the Contract Appeals Board is not reviewable under the Administrative Procedure Act of the District of Columbia. Gunnell Construction Co. v. Contract Appeals Board, 282 A.2d 556 (D.C.C.App.1971). Judge Nebeker stated (at p. 558): “Where the result reached by the Board does not satisfy the parties concerned they are left with the traditional remedies at law and any questions of contractual rights should be resolved in a suit on the contract.” And so in case of a dispute arising under the contract where the claim is made for money due pursuant to its provisions, the party may bring a suit on the contract, which the court will determine on the basis of whether there was substantial evidence to support the Board’s findings. However, when the claim is for breach of contract, and not a dispute arising under the contract, the court provides an independent judicial determination. United States v. Utah Construction Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). Utah also sets forth that if a “breach” claim overlaps a “dispute arising under the contract,” any matter litigated before the Board in regard to dispute aris-. ing under the contract is to be determined on the “substantial evidence” Wunderlich Act standard, and is not to be relitigated de novo in court. B This is general learning and background. What plaintiff says is that the principle of limited judicial review is not applicable at all in the case of a serious defect in the establishment and procedures of the Board of Contract Appeals. Where there is such a defect in the organization and operation of a board of contract appeals, it does not have minimum objectivity, and the Wunderlich limitation may not govern the court hearing the contract action. The Supreme"
},
{
"docid": "6507264",
"title": "",
"text": "requiring the submission of claims to the Contracting Officer before there can be resort to litigation. From an early date this was accomplished by the insertion of a disputes clause in government contracts. Anderson, The Disputes Article in Government Contracts, 44 Mich.L.Rev. 211 (1945); Kihlberg v. United States, 97 U.S. 398, 401, 24 L.Ed. 1106 (1878). Enforcing the disputes clause procedure, the Supreme Court ruled: But article 15 [the disputes clause] is something more than a dead letter to be reviewed only at the convenience or discretion of the contractor. It is a clear, unambiguous provision applicable at all times and binding on all the parties to the contract. No court is justified in disregarding its letter or spirit. ... It creates a mechanism whereby adjustments may be made and errors corrected on an administrative level, thereby permitting the Government to mitigate or avoid large damage claims that might otherwise be created. United States v. Holpuch Co., 328 U.S. 234, 239, 66 S.Ct. 1000, 1003, 90 L.Ed. 1192 (1946). See also United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288, 94 L.Ed. 256 (1950); United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951). Dissatisfaction with the almost complete administrative finality afforded to disputes clause decisions following the ruling in United States v. Wunderlich, supra, led to the enactment of the Wunderlich Act, 41 U.S.C. § 321-322. This Act restored judicial review but was construed to require full exhaustion of appellate administrative disputes clause remedies before litigation could be initiated, except for claims where there was no relief available under a term of the contract. United States v. Carlo Bianchi & Co. Inc., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963); United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966). Following an extensive examination, in 1972 the Commission on Government Procurement submitted a Report containing a number of recommendations with respect to improving government procurement. The"
},
{
"docid": "11872315",
"title": "",
"text": "Order No. 9 and the Contract Appeals Board, as constituted in CAB No. 355 and 356, also violates the provisions of the Wunderlich Act, 41 U.S.C. § 321. The Preliminary Statement concluded: “Plaintiff reserves the right to file a supplement opposing the claim of finality to be accorded the rulings of the Board in these cases after the issues raised by this pleading are resolved.” I The first question is whether the principles of the Wunderlich Act apply so as to curtail judicial review in this case, and if so to what extent. A In general, dispute clauses in District of Columbia contracts are subject, in the same way as a Federal contract, to the Wunderlich Act principle. The contract provisions for finality of decisions of the Contract Appeals Board are not applicable as written, in that they are not conclusive as to questions of law, and are conclusive as to matters of fact if, and only if, they are supported by substantial evidence. Kenny Construction Co. v. District of Columbia, 105 U.S.App.D.C. 8, 262 F.2d 926 (1959); District of Columbia v. Heman Ward, Inc., 261 A.2d 836 (D.C.C.App.1970). Under this “substantial evidence” rule, the law of Government contracts has become assimilated to doctrines of administrative law. United States v. Carlo Bianchi & Co., Inc., 373 U.S. 709, 715, 83 S.Ct. 1409, 1413, 10 L.Ed.2d 652, 657 (1963). However, the decision of the Contract Appeals Board is not reviewable under the Administrative Procedure Act of the District of Columbia. Gunnell Construction Co. v. Contract Appeals Board, 282 A.2d 556 (D.C.C.App.1971). Judge Nebeker stated (at p. 558): “Where the result reached by the Board does not satisfy the parties concerned they are left with the traditional remedies at law and any questions of contractual rights should be resolved in a suit on the contract.” And so in case of a dispute arising under the contract where the claim is made for money due pursuant to its provisions, the party may bring a suit on the contract, which the court will determine on the basis of whether there was substantial evidence to"
},
{
"docid": "23105346",
"title": "",
"text": "true depreciation costs for building No. 20 under a certificate of necessity for the remainder of the five-year depreciation period continuing after December 31,1959, in the sum of $50,439.94. Claim Jj, — for costs of occupancy of building No. 10, representing idle space costs, from January 1, 1960, to August 1, 1960, in the sum of $100,841. Claim 6 — for general and administrative costs relating to subcontract administration and termination, in the sum of $108,101.44. All of these claims were submitted to the contracting officer and they were denied by him. The plaintiff duly appealed to the Armed Services Board of Contract Appeals (ASBCA), which consolidated the claims into one case, conducted a trial and heard evidence, and handed down an opinion sustaining the decision of the contracting officer and denying all of plaintiff’s claims. Thereafter, plaintiff filed this suit in which it seeks recovery on the same claims which were denied by the ASBCA, together with its claim for breach of contract. It contends that the decison of the ASBCA (sometimes called the Board) on factual matters is not binding on this court because it is capricious, or arbitrary, or so grossly erroneous as to imply bad faith, or is not supported by substantial evidence. It also alleges that the decision of the Board on questions of law is erroneous and has no finality. The case is now before us for judicial review. The defendant urges that the Board’s decision should be accorded finality in view of the Wunderlich Act, 68 Stat. 81, 41 U.S.C. §§ 321-322 (1964) ; Morrison-Knudsen v. United States, 170 Ct. Cl. 757,345 F.2d 833 (1965); United States v. Oarlo Bianchi & Co., 373 U.S. 709 (1963) and similar cases. Without doubt, the Board had jurisdiction of these claims and could have granted complete relief under the provisions of the two contracts. It conducted a full trial, received evidence and briefs of the parties, made findings and conclusions and disposed of all the claims involved. Under these circumstances, the scope of our review is narrow and limited. However, in view of the allegations of"
},
{
"docid": "23613479",
"title": "",
"text": "all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department concerned or ■his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed.” As the claim was presented under this clause, the suit is governed by the “Wunderlich Act,” 41 U.S.C. §§ 321-322 (1958), which provides that the Board’s decision on matters covered by the Disputes Clauses “shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” The case was sent to a Commissioner who conducted a second hearing admitting evidence not presented to the Board. The Commissioner recommended that plaintiff recover. This court accepted the Commissioner’s findings and conclusions, 144 Ct. Cls. 500, and, after receiving additional evidence on the question of damages, entered judgment for plaintiff. 157 Ct. Cls. 432 (May 9,1962). The Supreme Court reversed, 373 U.S. 709 (1963), holding that the Wunderlich Act prevents de novo consideration by a court where an administrative determination has been made. Bather the Supreme Court held the reviewing court is limited to a determination whether there is substantial evidence, based on the record developed before the Board, to support the administrative conclusions. The case was again sent to the Commissioner after remand from the Supreme Court decision. The Commissioner, after examining the record of the Board hearing, concluded that the Board’s finding for the government was not based on substantial evidence. The parties are agreed that under the Wunderlich Act our scope of review is the same as that exercised by the federal courts of appeals under the standards of Universal Camera Corp. v. Labor Board, 340 U.S. 474, and its progeny. The task before this court under the Supreme Court decision is to review the determination of the Board of Claims and Appeals of the Corps of Engineers"
},
{
"docid": "21396550",
"title": "",
"text": "mechanism for adjudicating claims “arising under” the contract. Such claims must be submitted to the CO whose decision is final and conclusive unless appealed to the agency board of contract appeals (“board”). E.g., 10 C.F.R. § 961.11, Art. XVI H A. If the contractor is dissatisfied with the board’s decision, only then may it seek relief in the proper court. See Nager Elec. Co. v. United States, 177 Ct.Cl. 234, 251-52, 368 F.2d 847, 859 (1966). The scope of judicial review is limited to the administrative record developed by the board. United States v. Carlo Bianchi & Co., 373 U.S. 709, 714, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963). Under the Wunderlich Act, 41 U.S.C. §§ 321-22 (1994), the board’s factual findings will not be disturbed unless shown to be fraudulent, arbitrary or capricious, so grossly erroneous as necessarily to imply bad faith, or unsupported by substantial evidence. 41 U.S.C. § 321. The board’s legal determinations are not entitled to finality, however, and must be resolved independently by the court. 41 U.S.C. § 322; 10 C.F.R. § 961.11, Art. XVI ¶ A; Blake Constr. Co., Inc. v. United States, 220 Ct.Cl. 56, 59, 597 F.2d 1357, 1359 (1979). When a controversy “arises under” the contract, the contractor “must seek the relief provided for under the contract or be barred from any relief in the courts.” Crown Coat Front Co. v. United States, 386 U.S. 503, 512, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967); United States v. Utah Constr. & Mining Co., 384 U.S. 394, 402, 422 n. 22, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). This is because the administrative mechanism in the disputes clause “is exclusive in nature. Solely through its operation may claims be made and adjudicated as to matters arising under the contract.” United States v. Joseph A. Holpuch Co., 328 U.S. 234, 239-40, 106 Ct.Cl. 852, 66 S.Ct. 1000, 90 L.Ed. 1192 (1946). An exception is made only if it clearly appears that the administrative procedures are “inadequate or unavailable” — when, for example, the CO or the board “so clearly reveals an unwillingness to act"
},
{
"docid": "22717680",
"title": "",
"text": "3. Appeals from the decision of the contracting officer are characteristically heard by a board or committee designated by the head of the contracting department or agency. Should the contractor be dissatisfied with the administrative decision and bring a Tucker Act suit for breach of contract in the Court of Claims or the District Court, 28 U. S. C. § 1346 (a)(2) (1964 ed.), the finality accorded administrative fact finding by the disputes clause is limited by the provisions of the Wunderlich Act of 1954 which directs that such a decision “shall be final and conclusive unless the same is fra[u]dulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” With respect to this statutory provi sion we held in United States v. Carlo Bianchi & Co., 373 U. S. 709, that where the evidentiary basis for the administrative decision is challenged in a breach of contract suit, Congress did not intend a de novo determination of the facts by the court, which must confine its review to the administrative record made at the time of the administrative appeal. The issues in this case involve the coverage of the disputes clause and a recurring problem concerning the application of Bianchi to certain findings made during the administrative process. We granted certiorari because of the importance of these questions in the administration of government contracts. 382 U. S. 900. I. The contractor, Utah Construction & Mining Company, executed a contract in March 1953 to build a facility for the Atomic Energy Commission. After completing the project in January 1955, it filed with the contracting officer a “Pier Drilling” claim, which asked for an adjustment in the contract price and an extension of time under Article 4, the “changed conditions” clause. The contractor asserted it had encountered float rock in the course of excavating and drilling which, among other things, had increased its costs and delayed the work. Contrary to the decision of the contracting officer, the Advisory Board of Contract Appeals found the float rock to be a changed"
},
{
"docid": "12893251",
"title": "",
"text": "No. 97-164, 96 Stat. 25, are not relevant to resolution of the, issues raised in this case. . We consider entirely without merit appellant’s contention that § 1-8.502-2 does not apply because this case really involves a termination for default. The parties’ agreement, described above, settled the question. . Item 5 of the format for § 1-8.502-2 claims requires itemization. See also 41 C.F.R. § 1-8.307-l(c) (general requirement that a settlement proposal be in “reasonable detail”). . 41 U.S.C. §§ 321-322 (1976) (Wunderlich Act). The standard of review is: “ * * * any such decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” 41 U.S.C. § 321. The Court of Claims was limited to the record before the board. United States v. Cario Bianchi & Co., 373 U.S. 709, 714, 83 S.Ct. 1409, 1413, 10 L.Ed.2d 652 (1963). . United States v. Utah Constr. & Mining Co., 384 U.S. 394, 412, 86 S.Ct. 1545, 1555, 16 L.Ed.2d 642 (1966). . Tuttle/White Constructors, Inc. v. United States, 656 F.2d 644, 647-48 (Ct.Cl.1981). . See Tuttle/White Constructors, 656 F.2d at 647. The interest clause of Essex’s contract provided that interest would accrue “from the date the Contractor furnishes to the Contracting Officer his written appeal under the Disputes clause.” This would have been March 14, 1979. . Even though the contracting officer first received the claim prior to March 1, 1979, it has been settled that interest under the act may not be recovered for periods of time prior to its effective date. See Brookfield Constr. Co. v. United States, 661 F.2d 159, 162-66 (Ct.Cl.1981). . Fidelity Constr. Co. v. United States, 700 F.2d 1379, 1382-1385 (C.A.Fed.1983). . Id. . Paul E. Lehman, Inc. v. United States, 673 F.2d 352, 355 (Ct.Cl.1982). . Id. (citing with approval board decisions holding the same with respect to board review). See also Skelly & Loy v. United States, 685 F.2d 414, 418 & n. 12 (Ct.Cl.1982). . Skelly & Loy, 685"
},
{
"docid": "4409420",
"title": "",
"text": "appeal untimely, had denied it. We agree with the Board’s result, although reaching the same conclusion, as a matter of law, by a different route. See Federal Electric Corp. v. United States, 202 Ct.Cl. 1028,1040, 486 F.2d 1377,1383 (1973), cert. denied, 419 U.S. 874 (1974); Maxwell Dynamometer Co. v. United States, 181 Ct.Cl. 607,631, 386 F.2d 855,870 (1967). Because the issues presented by the merits of \"Failor Ridge” are the same as those correctly decided by the Board in \"Horse Creek,” plaintiffs procedural arguments are moot. A final issue remains: whether plaintiffs failure to exhaust its administrative remedies concerning the August 17, 1973 extension of the Horse Creek contract bars the court from considering the merits of plaintiffs appeal. See Anthony Grace & Sons, Inc. v. United States, supra. Assuming, arguendo, that plaintiffs claim is not barred, we reach the same result as in \"Horse Creek” (part 1, supra); plaintiff fails on the merits. Therefore, plaintiffs \"failure of administrative remedies” argument is also moot. In light of the foregoing, we conclude that the Board’s decisions in favor of the Government withstand Wunder-lich review. Plaintiff has not shown legal error in either the \"Horse Creek” of \"Failor Ridge” Board decision. Accordingly, after consideration of the briefs and record, and after hearing oral argument, plaintiffs motion for summary judgment is denied, defendant’s cross-motion for summary judgment is granted, and the petition is dismissed. The Wunderlich Act provides: 41 U.S.C. § 321 (1970). Limitation on pleading contract provisions relating to finality; standards of review. No provision of any contract entered into by the United States, relating to the finality or conclusiveness of any decision of the head of any department or agency or his duly authorized representative or board in a dispute involving a question arising under such contract, shall be pleaded in any suit now filed or to be filed as limiting judicial review of any such decision to cases where fraud by such official or his said representative or board is alleged: Provided, however, That any such decision shall be final and conclusive unless the same is fraudulent (footnote omitted) or"
},
{
"docid": "6507265",
"title": "",
"text": "338 U.S. 457, 70 S.Ct. 288, 94 L.Ed. 256 (1950); United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951). Dissatisfaction with the almost complete administrative finality afforded to disputes clause decisions following the ruling in United States v. Wunderlich, supra, led to the enactment of the Wunderlich Act, 41 U.S.C. § 321-322. This Act restored judicial review but was construed to require full exhaustion of appellate administrative disputes clause remedies before litigation could be initiated, except for claims where there was no relief available under a term of the contract. United States v. Carlo Bianchi & Co. Inc., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963); United States v. Utah Construction & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966); United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966). Following an extensive examination, in 1972 the Commission on Government Procurement submitted a Report containing a number of recommendations with respect to improving government procurement. The Report consisted of Parts A-J in four substantial volumes. It set forth recommendations on such matters as the authorization of sole-source procurement in circumstances where competition was not feasible. Report of the Commission on Government Procurement, Vol. 1, Part A, Recommendation 6, p. 26. Part G of the Report concerned “[Ljegal and Administrative Remedies” and encompassed several recommendations such as: Recommendation 5. Empower contracting agencies to settle and pay, and administrative forums to decide, all claims or disputes arising under or growing out of or in connection with the administration or performance of contracts entered into by the United States. * * * * * * Recommendation 6. Allow contractors direct access to the Court of Claims and district courts. Report of the Commission on Government Procurement, Vol. 4, Part G, pp. 22-23. With respect to its Part G Recommendation No. 6, the Commission explained that it “... would allow contractors, at their option, to bypass administrative disputes-resolving forums and seek review of adverse contracting officer decisions directly in either the Court of Claims or"
},
{
"docid": "22593103",
"title": "",
"text": "of the delays caused by defendant’s faulty pile specifications, but also seeks its increased costs incurred as a result of the change in the specifications. Under Change Order PP, defendant unilaterally allowed increased costs to the pile subcontractor. Plaintiff appealed this decision of the contracting officer claiming that it was entitled to be reimbursed for the increased costs it incurred as a result of the change. The Board upheld the contracting officer’s determination. A de novo trial was held on this issue, without any objection by the defendant that a determination of this issue be limited to a review of the administrative proceedings based on the Supreme Court’s ruling in United States v. Carlo Bianchi & Co., Inc., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963). Whatever might have been defendant’s right to limit this issue to a review of the administrative record, had the issue been timely raised, we hold, as we have before, that in this case defendant waived any such right by failing to object. WPC Enterprises Inc. v. United States, 323 F.2d 874, 163 Ct.Cl. 1 (1963); Stein Bros. Mfg. Co. v. United States, 337 F.2d 861, 162 Ct.Cl. 802 (1963). Plaintiff argues that the damages here sought flow directly from defendant’s breach so that recourse to the administrative board on its findings is not necessary. We need not decide this issue since we find that insofar as the decision of the Appeals Board involved factual issues within the “Disputes” clause, the Board’s decision is not supported by substantial evidence and is, therefore, overturned. As a result of the delays ensuing from the pile difficulties, plaintiff incurred costs on the foundation work in excess of those costs it would have sustained had the delays resulting from the changes not occurred. By an earlier completion date of the pile-driving operations plaintiff could have avoided added work which became necessary. During the period the excavations were open, especially after the middle of March 1950, rain, snow, and the freezing and thawing of the ground, caused the banks of the excavation to erode. Some footings had to"
},
{
"docid": "21260198",
"title": "",
"text": "Sea-Land when it signed the Exchange Contract, representing the amount by which the total value of the traded-out ships exceeded the total value of the traded-in ships. Sea-Land subsequently paid, under protest, the balance of $734,904.30, and appealed the contracting officer’s final decision within the Maritime Administration, as provided by the Lisputes Clause (Article 16) of the Exchange Contract. An initial decision by the MAHAL Chief Hearing Examiner, to whom Sea-Land’s appeal had been referred for an evi-dentiary hearing, recommended that Sea-Land be reimbursed in tbe full amount of $816,904.30 in order to perfect tlie vessel exchange. On December 7, 1972, the Assistant Secretary issued his final opinion and order affirming the decision of the contracting officer, rejecting the initial decision and recommendation of the Chief Hearing Examiner, and dismissing Sea-Land’s appeal with prejudice. Sea-Land now seeks Wunderlich Act review of MARAD’s final opinion and order. MARAD’s factual determinations are entitled to finality unless they are determined to be fraudulent, capricious, arbitrary, or so grossly erroneous as to imply bad faith, or are not supported by substantial evidence. 41 U.S.C. § 321; United States v. Carlo Bianchi & Co., 373 U.S. 709 (1963); Koppers Co. v. United States, 186 Ct. Cl. 142, 405, F. 2d 554 (1968). We are not constrained, of course, by MARAD’s determinations with respect to matters of law, and are free to reach our own conclusions. 41 U.S.C. § 322; Northwestern Industrial Piping, Inc. v. United States, 199 Ct. Cl. 540, 467 F. 2d 1308 (1972); Maxwell Dynamometer Co. v. United States, 181 Ct. Cl. 607, 386 F. 2d 855 (1967); Blount Bros. Const. Co. v. United States, 171 Ct. Cl. 478, 346 F. 2d 962 (1965). We are mindful, however, that the construction given to the provisions of the Vessel Exchange Act by the Maritime Administration is entitled to great weight if reasonable. United States v. American Trucking Assoc. Inc., 310 U.S. 534 (1940). As previously noted, the ultimate question in the case is the fair and reasonable values of the transfer and exchange ships. The first disputed issue relevant to that question concerns the"
},
{
"docid": "13657086",
"title": "",
"text": "reads as follows: “Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. Within 30 days from the date of receipt of such copy, the Contractor may appeal by mailing or otherwise furnishing to the Contracting Officer a written appeal addressed to the Secretary, and the decision of the Secretary or his duly authorized representative for the hearing of such appeals shall, unless determined by a court of competent juris■diction to have been fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence, be final and conclusive; provided that, if no such appeal is taken, the decision of the Contracting Officer shall be final and conclusive. * * * ” . In United States v. Joseph A. Holpuch Co., 328 U.S. 234, 239-240, 66 S.Ct. 1000, 1003, 90 L.Ed. 1192 (1945) the Court said of the Disputes Clause: “Solely through its operation may claims be made and adjudicated as to matters arising under the contract. * * * [a]nd in the absence of some clear evidence that the appeal procedure is inadequate or unavailable, that procedure must be pursued and exhausted before a contractor can be heard to complain in a court.” See also United States v. Blair, 321 U.S. 730, 64 S.Ct. 820, 88 L.Ed. 1039 (1944); United States v. Peter Kiewit Sons’ Co., 345 F.2d 879, 884 (8 Cir. 1965). . The Act overcame the decision in United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951), which held that departmental decisions under the Disputes Clause as then written were final unless founded on fraud. See United States v. Carlo Bianchi & Co., Inc., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963). The Act provides: “No provision of any contract entered into by the United States, relating to the finality or"
}
] |
704867 | "the infringement upon speech must have arisen from state action of some kind."" Bronner v. Duggan , 249 F.Supp.3d 27, 41 (D.D.C. 2017) (citing Blum v. Yaretsky , 457 U.S. 991, 1002-03, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) ). Here, the Plaintiffs have failed to allege state action. They suggest that the Platforms are ""quasi-state actors because they regulate their public platforms, thereby regulating free speech within their public forums."" Am. Compl. 24. But an entity can only be a ""state actor"" if ""there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may fairly be treated as that of the State itself."" REDACTED The Plaintiffs do not show how the Platforms' alleged conduct may fairly be treated as actions taken by the government itself. Facebook and Twitter, for example, are private businesses that do not become ""state actors"" based solely on the provision of their social media networks to the public. See Lloyd Corp. v. Tanner , 407 U.S. 551, 569, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972) (""Nor does property lose its private character merely because the public is generally invited to use it for designated purposes.""). The Plaintiffs cite two recent cases, Packingham v. North Carolina , --- U.S. ----, 137 S.Ct. 1730, 198 L.Ed.2d 273 (2017), and Halleck v. Manhattan Cmty. Access Corp. , 882" | [
{
"docid": "22716631",
"title": "",
"text": "property, without due process of law.” In 1883, this Court in the Civil Rights Cases, 109 U. S. 3, affirmed the essential dichotomy set forth in that Amendment between deprivation by the State, subject to scrutiny under its provisions, and private conduct, “however discriminatory or wrongful,” against which the Fourteenth Amendment offers no shield. Shelley v. Kraemer, 334 U. S. 1 (1948). We have reiterated that distinction on more than one occasion since then. See, e. g., Evans v. Abney, 396 U. S. 435, 445 (1970); Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 171-179 (1972). While the principle that private action is immune from the restrictions of the Fourteenth Amendment is well established and easily stated, the question whether particular conduct is “private,” on the one hand, or “state action,” on the other, frequently admits of no easy answer. Burton v. Wilmington Parking Authority, 365 U. S. 715, 723 (1961); Moose Lodge No. 107 v. Irvis, supra, at 172. Here the action complained of was taken by a utility company which is privatély owned and operated, but which in many particulars of its business is subject to extensive state regulation. The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment. 407 U. S., at 176-177. Nor does the fact that the regulation is extensive and detailed, as in the case of most public utilities, do so. Public Utilities Comm’n v. Poliak, 343 U. S. 451, 462 (1952). It may well be that acts of a heavily regulated utility with at least something of a governmentally protected monopoly will more readily be found to be “state” acts than will the acts of an entity lacking these characteristics. [But the inquiry must be whether there is a sufficiently\"'dose nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself?] Moose Lodge No. 107, supra, at 176. The true nature of the State’s"
}
] | [
{
"docid": "8830221",
"title": "",
"text": "question in this case is whether the actions of the Defendants could be considered the actions of the State for the purposes of liability under 42 U.S.C. § 1983. The answer is no. “The ultimate issue in determining whether [Defendants are] subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights ‘fairly attributable to the State?’” Rendell-Baker, 457 U.S. at 838, 102 S.Ct. 2764 (quoting Lugar, 457 U.S. at 937, 102 S.Ct. 2744). For the conduct of Defendants to be fairly attributable to the State, Defendants must be state actors. See Lugar, 457 U.S. at 937, 102 S.Ct. 2744. In the instant case, the group of Defendants consists of a private insurance company licensed to do business in the state of New York and its employees. “Only in rare circumstances can a private party be viewed as a ‘state actor’ for section 1983 purposes.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.1992). In the instant case, the Defendants may be held liable under § 1983 if they pass the so-called “close nexus/joint action test,” which requires the plaintiff to demonstrate “ ‘a sufficiently close nexus between the State and the challenged action of the [private] regulated entity so that the action of the latter may be fairly treated as that of the State itself.’” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). Ponticelli has failed to create a sufficiently close nexus between the State and the private Defendants to mandate their classification as state actors. Ponticelli has not demonstrated that the Defendants are “willful partieipant[s] in joint activity with the State or its agents,” Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), or that they collaborated or conspired with a person acting under color of state law to violate Ponticelli’s constitutional rights. See Singer v. Fulton County Sheriff, 63 F.3d 110, 119"
},
{
"docid": "8830222",
"title": "",
"text": "be held liable under § 1983 if they pass the so-called “close nexus/joint action test,” which requires the plaintiff to demonstrate “ ‘a sufficiently close nexus between the State and the challenged action of the [private] regulated entity so that the action of the latter may be fairly treated as that of the State itself.’” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)). Ponticelli has failed to create a sufficiently close nexus between the State and the private Defendants to mandate their classification as state actors. Ponticelli has not demonstrated that the Defendants are “willful partieipant[s] in joint activity with the State or its agents,” Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), or that they collaborated or conspired with a person acting under color of state law to violate Ponticelli’s constitutional rights. See Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir.1995). Zurich cannot be deemed to be acting under color of state law by virtue of the fact that it is licensed to conduct business in New York. See, e.g., Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir.1996) (stating that extensive regulation and even public funding, either alone or taken together, will not transform a private actor into a state actor); Glendora v. Cablevision Sys. Corp., 893 F.Supp. 264, 269 (S.D.N.Y.1995) (that the defendant is subject to state and federal regulation, or. operates pursuant to a government franchise, does not transform its actions into state action). Because Ponticelli fails to make a showing of state action, summary judgment is granted to Defendants. III. Summary Judgment Is Granted to Defendants to the Extent That Ponticelli Alleges Disparate Treatment Due to Gender Discrimination The Complaint is rather cryptic in alleging the theories under which the Defendants have purportedly violated Title VII. For example, Ponticelli’s opposition to Defendants’ summary judgment motion clarifies that she is alleging the creation of a hostile work environment and quid pro"
},
{
"docid": "6135241",
"title": "",
"text": "be present when the state and a private entity are so closely connected that the action of the private entity “may be fairly treated as the state itself.” Blum, Comm’r of the New York State Dep’t of Soc. Servs. v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). The underlying purpose of attributing state action to private activity is “to assure that constitutional standards are invoked only when it can be said that the state is responsible for the specific conduct of which the plaintiff complains.” Id. (emphasis in original). The Supreme Court has developed four principles to analyze claims of state action. Specifically, the principles are (1) whether there exists a “symbiotic relationship” between the entity and the state; (2) whether there is “extensive regulation” of the entity by the state; (3) whether the entity “depended on the State for funds”; and (4) whether the entity “performs a public function.” Rendell-Baker, 457 U.S. 830, 840-42, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). 1. Yale’s Relationship with and Regulation by the State In order for private conduct to be fairly treated as the state itself, the state must have “exercised coercive power or ha[ve] provided such significant encouragement, either overt or covert, that the choice [of the private actor] must in law be deemed to be that of the state.” Blum, 457 U.S. at 1004, 102 S.Ct. 2777. In Rendell-Baker, the Supreme Court held that personnel decisions made by the director of a private school could not be fairly attributed to the state. See Rendell-Baker, 457 U.S. at 841-43, 102 S.Ct. 2764. The school was a private institution for maladjusted high school students, which was regulated by Massachusetts’ statutes. The Court explained that “[t]he most intrusive ... regulation promulgated by the various government agencies was the requirement that the Committee on Criminal Justice had the power to approve persons hired as vocational counselors at the school.” Id. at 841-42, 102 S.Ct. 2764. Despite the state’s financial assistance to and regulation of the school, the Court held that the state of Massachusetts did not compel or influence"
},
{
"docid": "22854090",
"title": "",
"text": "cases under § 1983, ‘under color’ of law has consistently been treated as the same thing as the ‘state action’ réquired under the Fourteenth Amendment.” United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 1157 n. 7, 16 L.Ed.2d 267 (1966) (quoted in Lugar v. Edmondson Oil Co., 457 U.S. 922, 928, 102 S.Ct. 2744, 2749, 73 L.Ed.2d 482 (1982) [hereinafter “Lugar”]), and Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769-70, 73 L.Ed.2d 418 (1982). The state action principle is stated succinctly as follows: “[A]t base, ‘constitutional standards are invoked only when it can be said that the [government] is responsible for the specific conduct of which the plaintiff complains.’” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 632, 111 S.Ct. 2077, 2089, 114 L.Ed.2d 660 (1991) [hereinafter “Edmonson ”] (O’Connor, J. dissenting) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982)) (alterations in original). Put differently, deciding whether there has been state action requires an inquiry into whether “there is a sufficiently close nexus between the State and the challenged action of [Enterprise] so that the action of the latter may be fairly treated as that of the State itself.” Blum v. Yaretsky, 457 U.S. at 1004, 102 S.Ct. at 2786 (internal citation omitted). The Supreme Court in varying circumstances appears to utilize three discrete tests to determine whether there has been state action. See Haavistola v. Community Fire Co. of Rising Sun, 6 F.3d 211, 215 (4th Cir.1993). The first inquiry asks whether “the private entity has exercised powers that are traditionally the exclusive prerogative of the state.” Blum v. Yaretsky, 457 U.S. at 1004-05, 102 S.Ct. at 2786 (emphasis added) (internal citation omitted). Years ago, the Court applied this test somewhat liberally, holding, for example, that a town owned by a private company performs a public function and therefore is a state actor, see Marsh v. Alabama, 326 U.S. 501, 507, 66 S.Ct. 276, 279, 90 L.Ed. 265 (1946), and that a private organization conducting pre-primary elections for the purpose of sending its"
},
{
"docid": "14400893",
"title": "",
"text": "479 U.S. 1064, 107 S.Ct. 949, 93 L.Ed.2d 998 (1987); N.Y., N.H. & H.R. Co., First Mortgage 4% Bondholders’ Comm. v. United States, 305 F.Supp. 1049, 1055 (S.D.N.Y.1969), vacated on other grounds sub. nom., New Haven Inclusion Cases, 399 U.S. 392, 90 S.Ct. 2054, 26 L.Ed.2d 691 (1970). The state or governmental action requirement is satisfied if the complained-of conduct is “fairly attributable” to the state. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). In Cranley v. Nat’l Life Ins. Co. of Vt., 318 F.3d 105 (2d Cir.2003), the Second Circuit described the close public-private nexus required for conduct to be “fairly attributable” to the government: For the conduct of a private entity to be “fairly attributable” to the state, there must be “such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself.’ ” ... “The purpose of [the close-nexus] requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.”... The determination of whether the specific conduct of which the plaintiff complains constitutes state action is a “necessarily fact-bound inquiry.” ... A challenged activity by a private entity may be deemed state action when the state exercises “coercive power,” is “entwined in [the] management or control” of the private actor, or provides the private actor with “significant encouragement, either overt or covert,” or when the private actor “operates as a willful participant in joint activity with the State or its agents,” is “controlled by an agency of the State,” has been delegated a “public function” by the state, or is “entwined with governmental policies.” ... Id. at 111-12 (citations omitted) (quoting, inter alia, Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) and Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)). A private entity is not, however, “a state actor"
},
{
"docid": "22941220",
"title": "",
"text": "state involvement to invoke § 1983. Although Dowe refers to TAP as “a creature of statute,” she fails to provide even one example of how the Commonwealth regulates Head Start programs. Even assuming that the Head Start program in question is extensively regulated by the Commonwealth, “[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (footnote omitted). Rather, Dowe must also show that “there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Id. at 351, 95 S.Ct. 449; see also Lugar, 457 U.S. at 937, 102 S.Ct. 2744 (“[Cjonduct allegedly causing the deprivation of a federal right” is only actionable under section 1983 when the conduct is “fairly attributable to the state.”). Dowe also argues that the receipt of state and municipal grants and an exemption from Virginia State personal property taxes provides a sufficient nexus to invoke application of § 1983. As support, Dowe relies principally upon this Court’s decision in Edwards v. Maryland State Fair, 628 F.2d 282 (4th Cir.1980). In Edwards, our finding of state action was predicated on the fact that the corporation running the Maryland State Fair, albeit private, received substantial funding from the State of Maryland. Id. at 285. Only one year after our decision in Edwards, however, the Supreme Court held that a private nursing home was not a state actor despite the fact that it was financed from almost exclusively public sources. See Blum v. Yaretsky, 457 U.S. 991, 1011, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (noting that the State paid the medical expenses of more than ninety percent of the patients). The following year, the Supreme Court held that a private school funded primarily by the State was not a state actor. See Rendell-Baker v. Kohn, 457 U.S. 830,"
},
{
"docid": "15276407",
"title": "",
"text": "is not state action. Perpetual cited Desiderio in its brief before the district court and on appeal and does not attempt to distinguish it; it simply asserts that NASD is a state actor. In support of this bald assertion, Perpetual cites Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995). Lebron is clearly distinguishable; Amtrak, the corporation at issue in Lebrón, was created by the government “by special law for the furtherance of government objectives,” and the government “retain[ed] for itself permanent authority to appoint a majority of the directors of’ Amtrak. Id. at 400, 115 S.Ct. 961. There is no commonality between NASD and Amtrak. In its brief, Perpetual also encourages this Court to employ a new test when determining whether a private corporation is a “state actor” for purposes of the Constitution. In the case at hand, the application of the test would require us to ask whether, in NASD’s absence, the government would need to take over the role of regulator of NASD’s member companies. Perpetual’s proposed test is contrary to the analysis required by the Supreme Court in Lebrón and the other cases Perpetual cites for support: First, ... [t]he complaining party must ... show[, in addition to the fact that the entity is regulated by- the state,] that there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.... Second, ... a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.... Third, the required nexus may be present if the private entity has exercised powers that are traditionally the exclusive prerogative of the State. Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quotation marks and citations omitted); see Lugar v. Edmondson Oil Co., 457 U.S. 922, 941,"
},
{
"docid": "7860353",
"title": "",
"text": "Gabica, 708 F.2d 380, 383 (9th Cir.1983). While “ ‘there is no specific formula for defining state action,’ ” id. (quoting Melara v. Kennedy, 541 F.2d 802, 805 (9th Cir.1976)), we have traditionally evaluated whether a private actor has engaged in state action by relying on four distinct— but not mutually exclusive — tests: (1) the governmental nexus test, see Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (courts must consider whether there is a “sufficiently close nexus between the [sjtate and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the [sjtate itself’); (2) the public or governmental function test, see id. at 352, 95 S.Ct. 449 (state action is present when a private entity exercises functions traditionally and exclusively reserved to the state); (3) the state compulsion test, see Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (“a [sjtate normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [sjtate”); and finally, (4) the joint action test, see Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980) (private actors can be considered state actors if they are “willful participant^] in joint action with the [government] or its agents”). Satisfaction of any one of these tests can be sufficient to find state action. See Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 303, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001); Lee v. Katz, 276 F.3d 550, 554 (9th Cir.2002). Rather than applying the established four test analysis, the majority, relying on a single case from the Fourth Circuit, considers only the “governmental function” test, and ends its inquiry there. However, unlike the plaintiffs in United Auto Workers v. Gaston Festivals, Inc., 43 F.3d 902 (4th Cir.1995), the Top Hatters do not rest their argument on the"
},
{
"docid": "23119080",
"title": "",
"text": "commitment at Charter was made possible by Georgia statute. Her complaint ultimately fails, however, because Charter is no state actor. Only in rare circumstances can a private party be viewed as a “state actor” for section 1983 purposes. The Eleventh Circuit recognizes three tests for establishing state action by what is otherwise a private person or entity: the public function test, the state compulsion test, and the nexus/joint action test. NBC v. Communication Workers of America, AFL-CIO, 860 F.2d 1022, 1026 (11th Cir.1988). An analysis under each test reveals no state action in this case. We agree with Watkins v. Roche, 529 F.Supp. 327, 331 (S.D.Ga.1981), that the Georgia statutes neither compel nor encourage involuntary commitment, precluding Charter’s becoming a state actor by state compulsion. Like the plaintiff in the similar case of Spencer v. Lee, Mrs. Harvey cannot seriously allege that “the relevant provisions of the Mental Health Code were enacted because the state wants to encourage commitments, any more than state repossession laws are passed because states want to encourage creditors to repossess their debtors’ goods.” Spencer v. Lee, 864 F.2d 1376, 1379 (7th Cir.1989) (en banc) (citation omitted), cert. denied, — U.S. -, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990). Nor does the statute create a sufficiently close nexus between the state and Charter to mandate Charter’s classification as a state actor. Watkins, 529 F.Supp. at 329. The nexus/joint action test involves situations where the government has “so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise.” NBC, 860 F.2d at 1026 (citation omitted). Both the Supreme Court and our predecessor circuit have concluded that such a nexus is lacking in circumstances much more compelling than the circumstances of this case. See Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (private nursing home not state actor despite extensive regulation and 90% fees from state); Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (private school that treats students with drug/alcohol problems not state actor despite operating"
},
{
"docid": "8324690",
"title": "",
"text": "Stein, 541 F.3d 130, 146 (2d Cir.2008) (quoting Jackson, 419 U.S. at 351, 95 S.Ct. 449). The “close nexus” test “ ‘as sure[s] that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.’ ” Id. at 146-47 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)). However, “Supreme Court cases on this issue ‘have not been a model of consistency.’ ” Id. at 147 (quoting Edmonson v. Leesville Concrete Co., 500 U.S. 614, 632, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (O’Connor, J., dissenting)). “Not surprisingly, therefore, there is no single test to identify state actions and state actors. Rather, there are a host of facts that can bear on the fairness of an attribution of a challenged action to the State.” Horvath v. Westport Library Ass’n, 362 F.3d 147, 151 (2d Cir.2004) (quotations and citations omitted). “A nexus of state action exists ... when the state exercises coercive power, is entwined in the management or control of the private actor, ... or when the private actor operates as a willful participant in joint activity with the State or its agents, is controlled by an agency of the State, has been delegated a public function by the state, or is entwined with governmental policies.” Stein, 541 F.3d at 147 (quotations, citations, and emphases omitted). However, “conduct by a private enti ty is not fairly attributable to the state merely because the private entity is a business subject to extensive state regulation or ‘affected with the public interest.’” Cranley v. Nat’l Life Ins. Co. of Vermont, 318 F.3d 105, 112 (2d Cir.2003) (quoting Jackson, 419 U.S. at 350, 95 S.Ct. 449). “A finding of state action may not be premised solely on the private entity’s creation, funding, licensing, or regulation by the government.” Id. 1. Government Contracts SYI’s contract with the government does not convert its conduct into state action. The government enters into contracts for all kinds of goods and services without converting its contractors into state actors; architects"
},
{
"docid": "7860352",
"title": "",
"text": "elected to hold that neither the Festival Association nor the City was engaged in state action. The evidence, viewed in the light most favorable to the Top Hatters, demonstrates that there are genuine issues of fact precluding summary'judgment. Therefore, I respectfully dissent. I Genuine issues of material fact preclude summary judgment as to the Festival Association. As the majority notes, it is a well-established principle that a private entity can be subject to liability as a state actor under certain circumstances. See, e.g., Burton v. Wilmington Parking Auth., 365 U.S. 715, 724-25, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (holding that a privately owned restaurant that leased property from a state-owned parking facility was a state actor). The ultimate question is whether “the conduct allegedly causing the deprivation of a federal right” is “fairly attributable to the [s]tate.” Lugar v. Edmondson Oil Co. Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). In deciding whether conduct of private parties amounts to government action, we engage in a highly factual inquiry. Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir.1983). While “ ‘there is no specific formula for defining state action,’ ” id. (quoting Melara v. Kennedy, 541 F.2d 802, 805 (9th Cir.1976)), we have traditionally evaluated whether a private actor has engaged in state action by relying on four distinct— but not mutually exclusive — tests: (1) the governmental nexus test, see Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (courts must consider whether there is a “sufficiently close nexus between the [sjtate and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the [sjtate itself’); (2) the public or governmental function test, see id. at 352, 95 S.Ct. 449 (state action is present when a private entity exercises functions traditionally and exclusively reserved to the state); (3) the state compulsion test, see Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (“a [sjtate normally can be held responsible for a private"
},
{
"docid": "19455957",
"title": "",
"text": "over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB . There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine. 424 U.S. at 520-521, 96 S.Ct. 1029 ; see also Lloyd Corp. v. Tanner , 407 U.S. 551, 569-570, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972) ; Central Hardware Co. v. NLRB , 407 U.S. 539, 547, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972) ; Alliance for Community Media , 56 F. 3d at 121-123. The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it \"is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.\" 882 F. 3d at 311 (opinion concurring in part and dissenting in part). In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints. If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. \"The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.\" Hudgens , 424 U.S. at 519, 96 S.Ct. 1029 (internal quotation marks omitted). Benjamin Franklin did not have to operate his newspaper as \"a stagecoach,"
},
{
"docid": "547856",
"title": "",
"text": "the ADEA. Count I must therefore be dismissed. However, it is dismissed without prejudice to the filing of an amended complaint which alleges with the requisite clarity and specificity a continuing violation under the ADEA. The defendants argue that Count I should be dismissed with prejudice in that— even apart from the timeliness issue — the termination and alleged refusal to hire are separate and discrete occurrences that do not come within the continuing violation theory based upon a pattern or practice of behavior. Unfortunately for the defendants, such a claim would simply not be susceptible to disposition prior to any discovery on the matter. Whether in fact the plaintiffs termination and the defendants’ subsequent refusal to hire her would be sufficiently linked, in the absence of any timeliness concerns, to sustain a continuing violation claim is not a matter that should be decided on the pleadings. Accordingly, while the court dismisses Count I, it does so without prejudice. B. (1) As for Count II, the plaintiffs constitutional claims must clearly fail. Absent state action, the plaintiff simply cannot pursue a claim under the First Amendment to the United States Constitution. See, e.g., Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972) (a privately-owned retail shopping center is not subject to the First Amendment, which safeguards the right of free speech by limitations on state action); Musso v. Hourigan, 836 F.2d 736, 742 (2d Cir.1988) (the First Amendment prohibits state action that regulates speech on the basis of content); Johnson v. Carpenter Technology Corporation, 723 F.Supp. 180, 185-86 (D.Conn.1989) (citing Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)) (acts of private individuals are beyond the scope of state action and are thus beyond the protections of the federal constitution unless the state has exercised coercive power, making the act that of the state); cf. International Society for Krishna Consciousness v. Lee, — U.S. -, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992) (an airport terminal — even though it is owned and operated by a public authority — is not a"
},
{
"docid": "547857",
"title": "",
"text": "the plaintiff simply cannot pursue a claim under the First Amendment to the United States Constitution. See, e.g., Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972) (a privately-owned retail shopping center is not subject to the First Amendment, which safeguards the right of free speech by limitations on state action); Musso v. Hourigan, 836 F.2d 736, 742 (2d Cir.1988) (the First Amendment prohibits state action that regulates speech on the basis of content); Johnson v. Carpenter Technology Corporation, 723 F.Supp. 180, 185-86 (D.Conn.1989) (citing Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982)) (acts of private individuals are beyond the scope of state action and are thus beyond the protections of the federal constitution unless the state has exercised coercive power, making the act that of the state); cf. International Society for Krishna Consciousness v. Lee, — U.S. -, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992) (an airport terminal — even though it is owned and operated by a public authority — is not a “public forum” for First Amendment purposes and ban on solicitation need only satisfy a reasonableness standard). Nor can the plaintiff assert a claim under Article First of the Connecticut Constitution without a showing of state action. See Cologne v. Westfarms Associates, 192 Conn. 48, 66, 469 A.2d 1201 (1984) (following Lloyd v. Tanner and rejecting claim that sections 4 and 14 of Article First of the Connecticut Constitution apply to privately owned shopping mall). While the plaintiff asserted at oral argument that the governmental funding, licensing, and regulation of the standards of care and operations of the hospital conferred upon the hospital the status of a governmental entity, the plaintiff has wisely retracted this meritless claim. See Plaintiffs Supplemental Memorandum at 3. See, e.g., Schlein v. Milford Hospital, 561 F.2d 427 (2d Cir.1977) (per curiam) (hospital’s denial of staff privileges to doctor did not amount to state action, since, while the hospital was state-licensed, regulated by the state health department, tax exempt and empowered by the state to annex contiguous land for expansion, the state"
},
{
"docid": "8324692",
"title": "",
"text": "designing federal buildings or engineers building bridges do not thereby become government actors. See Rendell-Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (the “[a]cts of ... private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts”). The fact that “a private entity performs a function which serves the public does not make its acts state action.” Id. at 842, 102 S.Ct. 2764. The contract itself is insufficient to render all of the contractor’s conduct state action, and the CPU contract here is not enough by itself to make SYI a state actor. See id. 2. The “Public Function” Test Since the contract alone does not convert the CPU into a state actor, we must explore whether and to what extent the CPU is a “state actor” while performing its contractual tasks. One way that a private entity may be considered a state actor for constitutional purposes is by “exercising] powers that are ‘traditionally the exclusive prerogative of the State.’ ” Blum v. Yaretsky, 457 U.S. 991, 1005, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quoting Jackson, 419 U.S. at 353, 95 S.Ct. 449). “State action may be found in situations where an activity that traditionally has been the exclusive, or near exclusive, function of the State has been contracted out to a private entity. For example, only the State may legitimately imprison individuals as punishment for the commission of crimes.” Horvath, 362 F.3d at 151. In West v. Atkins, the Supreme Court concluded that the conduct of a private medical doctor attending to prison inmates pursuant to a government contract was “fairly attributable to the State” for the purposes of 42 U.S.C. § 1983. 487 U.S. 42, 57, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). The approach is functional: The fact that the State employed [the doctor] pursuant to a contractual arrangement that did not generate the same benefits or obligations applicable to other ‘state employees’ does not alter the [state action] analysis. It is the physician’s function within the state system,"
},
{
"docid": "21875198",
"title": "",
"text": "governmental function, Id.; are the government and the private entity so entangled that it appears that the private entity is acting in concert with the government, Brentwood, 531 U.S. at 296, 121 S.Ct. 924; whether there is such a close “nexus” between the government and the challenged action that it is fair to treat the private actor like the state, Id. (citation omitted); does the government provide “significant encouragement either overt or covert,” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982); and does a private actor operate as a “willful participant in joint activity with the state or its agents.” Brentwood, 531 U.S. at 296, 121 S.Ct. 924 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 941, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)) (overview of factors). See also Johnson v. Rodrigues, 293 F.3d 1196, 1203-05 (10th Cir.2002) (citations omitted); Mentavlos v. Anderson, 249 F.Sd 301, 313-14 (4th Cir.2001); John Fee, The Formal State Action Doctrine and Free Speech Analysis, 83 N.C. L.Rev. 569 (March 2005). This list is not all inclusive because the state action doctrine is contextual and no single factor is necessary for there to be state action. Brentwood, 531 U.S. at 296, 121 S.Ct. 924. In Brentwood, the Court stated: What is fairly attributable is a matter of normative judgment, and the criteria lack rigid simplicity. From the range of circumstances that could point toward the State behind an individual face, no one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason against attributing activity to the government. 531 U.S. at 295-96, 121 S.Ct. 924 (citations omitted). In this case, there is evidence that the City has delegated to the Corporation functions traditionally and exclusively performed by government. The City Police are instructed by the City to report during the Air Show to the Corporation’s representative, Mary Posner, and to follow her directives. Martin Dep. 51:21 to 52:1; PI. Ex. 43 (instructing officers to contact a Corporation representative in"
},
{
"docid": "7284295",
"title": "",
"text": "Article III court adjudicate her discrimination claims. Third, the arbitration process is unaccompanied by the procedural protections that the Fifth Amendment guarantees litigants. Fourth, arbitration operates to forfeit the statutorily mandated benefits that Title VII confers, compounding the due process violation. Finally, Cremin argues that requiring her to waive each of these rights is both an unconstitutional condition of employment and a violation of the 1991 Civil Rights Act. Because the majority of Cremin’s contentions center on Fifth Amendment due process rights, we address them first. A. State Action Since 1883, the Supreme Court has hewed to the principle that only govemmen-tal actors can violate constitutional due process rights. See The Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883); Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 95 S.Ct. 449, 452-53, 42 L.Ed.2d 477 (1974); Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 2784-85, 73 L.Ed.2d 534 (1982); NCAA v. Tarkanian, 488 U.S. 179, 191, 109 S.Ct. 454, 461-62, 102 L.Ed.2d 469 (1988). The due process clauses in the Fifth and Fourteenth Amendments afford no relief from purely private conduct, no matter how unfair or reprehensible. Tarkanian, 488 U.S. at 190, 109 S.Ct. at 461. Private entities may be held to constitutional standards, however, if their actions are “fairly attributable” to the State. Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). In Blum v. Yaretsky, the Supreme Court clearly set out what does and what does not satisfy this standard: First, ... [t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment. The complaining party must also show that “there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may fairly be treated as that of the State itself.” Second, ... a State normally can"
},
{
"docid": "19455956",
"title": "",
"text": "of a public forum for speech is a traditional, exclusive public function. That analysis mistakenly ignores the threshold state-action question. When the government provides a forum for speech (known as a public forum), the government may be constrained by the First Amendment, meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint, or sometimes even on the basis of content. See, e.g., Southeastern Promotions, Ltd. v. Conrad , 420 U.S. 546, 547, 555, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (private theater leased to the city); Police Dept. of Chicago v. Mosley , 408 U.S. 92, 93, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (sidewalks); Hague v. Committee for Industrial Organization , 307 U.S. 496, 515-516, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (streets and parks). By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB . There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine. 424 U.S. at 520-521, 96 S.Ct. 1029 ; see also Lloyd Corp. v. Tanner , 407 U.S. 551, 569-570, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972) ; Central Hardware Co. v. NLRB , 407 U.S. 539, 547, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972) ; Alliance for Community Media , 56 F. 3d at 121-123. The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As"
},
{
"docid": "23167333",
"title": "",
"text": "Memorial Hospital’s status: It may well be that acts of a heavily regulated utility with at least something of a governmentally protected monopoly will more readily be found to be “state” acts than will the acts of an entity lacking these characteristics. But the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. We do not feel that the nature of Orange County’s involvement with the hospital facility justifies a finding of state action. Dr. Greco’s assertion that the instant appeal is governed by Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) and Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) is also ill-founded. Recent decisions have more explicitly defined the applicability of Marsh and Terry stating that a business is not a state actor merely because the enterprise is affected with a public purpose. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477, 485 (1974); Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122, 128-29 (1972); Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). In Marsh, Gulf Shipbuilding Corporation held title to all the land in the “company town” and assumed the responsibilities of providing traditional municipal services, including police protection, to the residents of the town. Terry involved a duplicitous county primary scheme designed to disenfranchise black voters. No such peculiarly governmental function has been assumed by the Orange Memorial Hospital Corporation. Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131, 143 (1972). In summary, we find that Orange County is not sufficiently connected with the Orange Memorial Hospital Corporation’s activities to imbue those actions with the attributes of the state. The involvement of the County is not sufficiently related to the corporation’s decision to prohibit elective abortions to justify the imposition of Constitutional restrictions upon the daily"
},
{
"docid": "15276408",
"title": "",
"text": "Perpetual’s proposed test is contrary to the analysis required by the Supreme Court in Lebrón and the other cases Perpetual cites for support: First, ... [t]he complaining party must ... show[, in addition to the fact that the entity is regulated by- the state,] that there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.... Second, ... a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.... Third, the required nexus may be present if the private entity has exercised powers that are traditionally the exclusive prerogative of the State. Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quotation marks and citations omitted); see Lugar v. Edmondson Oil Co., 457 U.S. 922, 941, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (private use of challenged government procedures with the help of government officials constitutes state action). We decline to ignore such clear direction from the Supreme Court in favor of Perpetual’s proposed test. Given the clear and unambiguous precedent in this Circuit holding that NASD is a private actor and that the adoption of compulsory arbitration by it does not constitute state action, the district court did not err in determining that Perpetual’s due process argument failed to confer jurisdiction over Perpetual’s action to vacate the arbitration award. See Duke Power, 438 U.S. at 70, 98 S.Ct. 2620 (“[T]he test is whether the cause of action alleged is so patently without merit as to justify ... the court’s dismissal for want of jurisdiction.” (quotation marks omitted)). Because NASD is a private actor and because there is no nexus between its challenged action (compulsory arbitration) and the state, Perpetual’s claim of a due process violation is patently without merit. C. We have intimated that an allegation that an arbitration panel"
}
] |
34051 | the original payment schedule for a claim secured only by a security interest in real property that is the debtor’s principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title. 11 U.S.C. § 1322(c)(2). Courts have found that mortgages which fully mature prior to a debtor’s bankruptcy filing fall within the purview of § 1322(c)(2). In re Escue, 184 B.R. 287, 292 (Bankr.M.D.Tenn.1995); In re Sturgill, 337 B.R. 599 (Bankr.W.D.Ky. 2006); In re Kelly, 283 B.R. 808 (Bankr. M.D.Fla.2002); In re Padgett, 273 B.R. 277, 279 (Bankr.M.D.Fla.2001); In re Nepil, 206 B.R. 72, 76 (Bankr.D.N.J.1997); REDACTED In re Chang, 185 B.R. 50 (Bankr. N.D.Ill.1995); In re Jones, 188 B.R. 281 (Bankr.D.Or.1995); In re Watson 190 B.R. 32 (Bankr.E.D.Pa.1995). If a debt secured only by the debtor’s residence either matures pre-petition or will become due in full prior to conclusion of the plan, the debtor may modify the terms of the loan and pay the balance due over the life of the plan, Escue, 184 B.R. at 292; however, pursuant to § 1322(c)(2)’s language, any proposed modification must comply with § 1325(a)(5) of the Bankruptcy Code. Jones, 188 B.R. at 284. Since its enactment, there have been a small number of courts in the Sixth Circuit which have addressed the applicability of § 1322(c)(2). In 1999, the Sixth | [
{
"docid": "6066272",
"title": "",
"text": "to pay out through the plan a home mortgage loan that had fully matured pre-petition. The Ninth Circuit concluded this was an impermissible modification of a home mortgage. The Court declines Nation-sCredit’s invitation based on the following. The Bankruptcy Reform Act (“1994 Act”), which went into effect on October 22, 1994, added a new subsection to Section 1322. The pertinent new subsection is Section 1322(c)(2) which states: (c) Notwithstanding subsection (b)(2) and applicable nonbankruptey law— (2) in a case in which the last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor’s principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title. This subsection allows a mortgage debt that has come due before the last payment is due under the plan, to be modified so that the mortgage is paid in full by the time the last payment comes due under the plan. This broad language clearly allows for the post-petition payment of a balloon mortgage payment that came due pre-petition, through a stream of payments contained in the Chapter 13 plan. The balloon mortgage payments must be completed by no later than the date the last payment is due under the proposed plan. This section overrules the holding made in In re Seidel, supra. Judge Hyman recently reached the same conclusion in an unpublished opinion dated August 28, 1995 in the case of In re George Miller and Edwina Miller, Case No. 95-21733-BKC-PGH, 1995 WL 771402, where he ruled: The plain language of Section 1322(c) clearly and explicitly overrules In re Sei-del, supra and removes the protection against the modification of certain mortgages, including those that have matured pre-petition. Therefore, the court finds that a chapter 13 debtor can modify and pay off a mortgage during the term of the Debtors’ plan which fully matured prepetition. The NationsCredit argument that the Debt- or’s plan as proposed contains an impermissible modification"
}
] | [
{
"docid": "14612351",
"title": "",
"text": "home mortgages from the antimodification provisions of 11 U.S.C. § 1322(b)(2). The new provision, however, “is not a model of clarity with respect to mortgages that matured, ballooned or were subject to demand before the petition. The last payment ‘on the original payment schedule’ for such a mortgage would certainly be due before the final payment under the plan — the last payment was due before the borrower became a Chapter 13 debtor.” 1 Keith M. Lundin, Chapter IS Bankruptcy § 4.50, at 240 (2nd ed. Supp.1996). The decisions interpreting the new section have concluded that a mortgage that matured or ballooned before the petition can be paid in full through the plan. Id., at 241. See also, 5 Daniel R. Cowans, Bankruptcy Law and Practice § 19.18, p. 49 (7th ed.1998); 8 Lawrence P. King, Collier on Bankruptcy ¶ 1322.15, at 1322-51 (15th ed. rev. 1998). In fact, various courts have held that the new provision, by specifically permitting cure under 11 U.S.C. § 1322(b)(3), notwithstanding § 1322(b)(2), implicitly overruled the decision of the Court of Appeals for the Ninth Circuit in In re Seidel, supra, which held that a debtor could not cure a fully matured mortgage because such a cure would be a modification prohibited by 11 U.S.C. § 1322(b)(2). See, for example, In re Chang, 185 B.R. 50, 53 (Bankr.N.D.Ill.1995); In re Jones, 188 B.R. 281, 284 (Bankr.D.Or.1995); In re Watson, 190 B.R. 32, 36 (Bankr.E.D.Pa.1995). Accordingly, “where the debt matures before the petition on a short-term debt, the plan may pay off the debt on installments” during the life of the plan. 5 Cowans, supra, § 1918, at 49. Courts construing section 1322(c)(2), other courts that have construed section i322(e)(2) have concluded that this section allows debtors to cure the default on a note which matured pre-petition. See, In re Escue, 184 B.R. 287 (Bankr.M.D.Tenn.1995); In re Chang, 185 B.R. 50 (Bankr.N.D.Ill.1995); In re Jones, 188 B.R. 281 (Bankr.D.Or.1995); In re Sarkese, 189 B.R. 531 (Bankr.M.D.Fla.1995). The court in In re Escue, supra, considered whether a debtor may pay the final payment of a fully"
},
{
"docid": "10207784",
"title": "",
"text": "legislative hearings ... that[ ] homemortgagor lenders, performing a valuable social service through their loans, needed special protection against modification thereof (i.e., reducing installment payments, secured valuations, etc.)”). Even though we conclude that it does not permit bifurcation, § 1322(c)(2) still provides significant relief for homeowners in Chapter 13 who need more flexibility in paying off their mortgage loans. As many bankruptcy courts have already recognized, § 1322(c)(2) will serve primarily to “permitf ] debtors to cure [maturing] obligations by paying the remaining part of the debt over the life of a Chapter 13 plan.” In re Nepil, 206 B.R. 72, 76 (Bankr.D.N.J.1997); see also In re Watson, 190 B.R. 32, 37 (Bankr.E.D.Pa.1995) (“[T]he obvious purpose of § 1322(c)(2) was to serve as the antidote for the theory that § 1322(b)(2) barred the cure of a residential mortgage obligation which matured prepetition.”); In re Escue, 184 B.R. 287, 292 (Bankr.M.D.Tenn.1995) (concluding that under § 1322(c)(2) “Congress intended for debtors to be able to cure ‘stub’ or ‘short-term’ mortgages which mature or balloon prior to filing of the petition”). It is clear, therefore, that this repayment flexibility will be an important tool for debtors in restructuring the payment of home mortgage debt in Chapter 13 plans. See In re Chang, 185 B.R. 50, 53 (Bankr.N.D.Ill.1995) (noting that § 1322(c)(2) “enables debtors to retain their homes for a few additional years and may enable them to sell their homes at a more favorable economic time, obtain replacement financing, or hope that their economic circumstances change for the better so that they may pay off the mortgage debt.”). We are certain, however, that Congress did not intend to permit bifurcation as yet another tool of restructuring this category of debt. III. In sum, § 1322(c)(2) does not trump § 1322(b)(2) (and Nobelman) to allow bifurcation of an undersecured home mortgage note. The district court’s reversal of the bankruptcy court’s order overruling United’s objection to the Witts’ Chapter 13 plan is therefore AFFIRMED. . The last payment on the original note was scheduled for October 1, 1999, while the last payment under the Witts'"
},
{
"docid": "4767377",
"title": "",
"text": "the debtor’s principal residence [hereinafter referred to as a “home mortgage”] if the last regularly scheduled payment under the claim falls due before final payment under the plan is due, notwithstanding 11 U.S.C. § 1322(b)(2) or any contrary applicable non-bankruptcy law. Section 1322(b)(2) of the Bankruptcy Code provides the general authority for modification of secured and unsecured claims, although such authority is subject to subparts (a) and (c) of § 1322 and one important exception: the rights of home mortgage claim holders may not be modified. (b) Subject to subsections (a) and (c) of this section, the plan may— (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims. 11 U.S.C. § 1322(b)(2). 11 U.S.C. § 1322(c) indicates that the claim described therein may be modified “[n]ot-withstanding subsection (b)(2),” and because § 1322(b) has been made expressly subject to subpart (c), it is logical to conclude that subsection (e)(2) provides an exception to the general prohibition on home mortgage modifications for those mortgages where the last payment happens to fall due during the life of the plan. The courts construing subsection (c)(2) since its enactment in 1994 have uniformly agreed. See In re Sarkese, 189 B.R. 531, 535 (Bankr.M.D.Fla.1995) (subsection 1322(c)(2) creates an exception to subsection 1322(b)(2)); In re Lobue, 189 B.R. 216, 218 (Bankr.S.D.Fla.1995) (“The plain language of Section 1322(c) clearly and explicitly ... removes the protection against the modification of certain mortgages.... ”); In re Jones, 188 B.R. 281, 282 (Bankr.D.Or.1995) (“these provisions [subsection (e)(1) and (2) ] create further exceptions to the § 1322(b)(2) prohibition against modification of the rights of secured creditors holding only liens against the debtor’s residence.”). Furthermore, the Supreme Court has recognized, in a discussion of the limits on § 1322(b) (2)’s protection for home mortgages, that similar “notwithstanding (b)(2)” language found in 1322(b)(5) prefaced an exception to this protection. This court sees no statutory basis for"
},
{
"docid": "4551467",
"title": "",
"text": "debtors are to make two monthly payments to Wells Fargo: one in the amount of $3,011.80 and one in the amount of $189.00. The $189.00 payment is to be applied to the Hennings’ approximate $10,000.00 pre-petition arrearage. The plan does not list a lump sum payment to Wells Fargo; however, the stipulation of facts filed on May 27, 2009, and the debtors’ post-hearing briefs all state that the debtors would make a balloon payment on the mortgage on the “last day of month 59 of the plan.” Generally, debtors are prohibited from modifying the rights of creditors who have a security interest in the debt- or’s principal residence. 11 U.S.C. § 1322(b); however, in 1994, Congress amended § 1322 to allow debtors to modify home mortgage claims in certain limited situations: in a case in which the last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor’s principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title. 11 U.S.C. § 1322(c)(2). Courts have found that mortgages which fully mature prior to a debtor’s bankruptcy filing fall within the purview of § 1322(c)(2). In re Escue, 184 B.R. 287, 292 (Bankr.M.D.Tenn.1995); In re Sturgill, 337 B.R. 599 (Bankr.W.D.Ky. 2006); In re Kelly, 283 B.R. 808 (Bankr. M.D.Fla.2002); In re Padgett, 273 B.R. 277, 279 (Bankr.M.D.Fla.2001); In re Nepil, 206 B.R. 72, 76 (Bankr.D.N.J.1997); In re Lobue, 189 B.R. 216 (Bankr.S.D.Fla. 1995); In re Chang, 185 B.R. 50 (Bankr. N.D.Ill.1995); In re Jones, 188 B.R. 281 (Bankr.D.Or.1995); In re Watson 190 B.R. 32 (Bankr.E.D.Pa.1995). If a debt secured only by the debtor’s residence either matures pre-petition or will become due in full prior to conclusion of the plan, the debtor may modify the terms of the loan and pay the balance due over the life of the plan, Escue, 184 B.R. at 292; however, pursuant to § 1322(c)(2)’s language, any proposed modification must"
},
{
"docid": "16856599",
"title": "",
"text": "Relying upon the provisions of § 1325(a)(5), Debtors sought to bifurcate AGF’s claim, with the secured portion paid back in monthly installments and the unsecured component crammed down. While the bankruptcy court disagreed with Debtors’ valuation of AGF’s collateral, it agreed with the premise of Debtors’ proposal and permitted AGF’s claim to be bifurcated, with only the value of the secured portion returned to AGF. AGF argues that another provision of the Bankruptcy Code precludes the modification of its claim. According to AGF, § 1322(b)(2) expressly prohibits the modification of any claim in a Chapter 13 proceeding “secured only by a security interest in real property that is the debtor’s principal residence.” 11 U.S.C. § 1322(b)(2). The Supreme Court has interpreted this provision to exclude mortgages against a debtor’s principal residence from the general rule permitting modification of secured claims in Chapter 13 proceedings. Nobelman v. Am. Savings Bank, 508 U.S. 324, 331-32, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993), superseded by statute as stated in In re Escue, 184 B.R. 287 (Bankr.M.D.Tenn.1995). In the instant case, AGF holds a note secured solely by a lien on the real property that constitutes Debtors’ principal residence. Hence, AGF contends that its claim cannot be modified pursuant to § 1325(a)(5). Debtors rely upon what they term “an exception to the section 1322(b)(2) exception” to support their contention that AGF’s claim should be subject to modification. The relevant provision is found at § 1322(c)(2), which provides as follows: Notwithstanding subsection (b)(2) and applicable nonbankruptcy law— (2) in a case in which the last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor’s principal residence is due before the date on which the final payment under the plan is due, the plan may provide for payment of the claim as modified pursuant to section 1325(a)(5) of this title. 11 U.S.C. § 1322(c)(2). Debtors contend that this provision unambiguously provides that short-term mortgages that mature prior to the final payment on a Chapter 13 plan are subject to modification, notwith standing the"
},
{
"docid": "16064457",
"title": "",
"text": "payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor’s principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title. “The legislative history of [this] provision states that it was intended to overrule the decision [in Perry, supra].” 5 COLLIER ON BANKRUPTCY, ¶ 1322.14B, at 1322-51 (15th ed. 1995). See BRA, Section-by-Section Description, § 301, H.R.REP. NO. 103-834, 103rd Cong., 2d Sess. 33-34 (October 4, 1994), U.S.Code Cong. & Admin.News 1994, at 3323, 3341-3342. (“[T]he changes made by this section, in combination with those made in section 305 of this bill [relating to interest on arrears], would ... also overrule the result in [Perry] with respect to mortgages on which the last payment on the original payment schedule is due before the date on which the final payment under the plan is due.”). See In re Chang, 185 B.R. 50, 53 (Bankr.N.D.Ill.1995) (court refuses to follow its prior holding in Davis, supra, in light of § 1322(c)(2)); and In re Escue, 184 B.R. 287, 292-93 (Bankr.M.D.Tenn.1995). Therefore, to the extent that Perry interpreted § 1322(b)(2) as limiting a Chapter 13 debtor’s right to cure a mortgage after a foreclosure judgment or because it had determined that the obligation matured pre-petition, it was overruled by § 1322(c). Seidel is, of course, more on the point of whether an obligation which matured pre-petition can be cured than is Perry. It appears that § 1322(c)(1) overruled Perry, while § 1322(c)(2) overruled Seidel. In any event, as the court expressly holds in In re Jones, 188 B.R. 281, 284 (Bankr.D.Or.199), there is little doubt that § 1322(c)(2) overruled Seidel. The subsection of § 1322(c) which is important to the resolution of the instant matter is of course § 1322(c)(2). While it is true that § 1322(c)(2) is only applicable to “a claim secured only by a security interest in real property that is the debtor’s principal"
},
{
"docid": "14612352",
"title": "",
"text": "Court of Appeals for the Ninth Circuit in In re Seidel, supra, which held that a debtor could not cure a fully matured mortgage because such a cure would be a modification prohibited by 11 U.S.C. § 1322(b)(2). See, for example, In re Chang, 185 B.R. 50, 53 (Bankr.N.D.Ill.1995); In re Jones, 188 B.R. 281, 284 (Bankr.D.Or.1995); In re Watson, 190 B.R. 32, 36 (Bankr.E.D.Pa.1995). Accordingly, “where the debt matures before the petition on a short-term debt, the plan may pay off the debt on installments” during the life of the plan. 5 Cowans, supra, § 1918, at 49. Courts construing section 1322(c)(2), other courts that have construed section i322(e)(2) have concluded that this section allows debtors to cure the default on a note which matured pre-petition. See, In re Escue, 184 B.R. 287 (Bankr.M.D.Tenn.1995); In re Chang, 185 B.R. 50 (Bankr.N.D.Ill.1995); In re Jones, 188 B.R. 281 (Bankr.D.Or.1995); In re Sarkese, 189 B.R. 531 (Bankr.M.D.Fla.1995). The court in In re Escue, supra, considered whether a debtor may pay the final payment of a fully matured mortgage through a Chapter 13 plan. 184 B.R. at 292. The court ruled that 11 U.S.C. § 1322(c)(2) was specifically created to allow the debtors with a “short-term” or “balloon” mortgage payment that matured prepetition to provide for such payments in the life of the plan. 184 B.R. at 288. The court reasoned that although not perfectly clear from the language of the newly added section Congress intended for debtors to be able to cure defaults on short-term mortgages that matured or ballooned prior to the petition date under the referred section. The Court explained: Subsection (c)(2) appears to contemplate' mortgages which mature post-petition, but the Congressional intent of this statute when considered in light of the other provisions of Chapter 13, and the overall objectives of bankruptcy, suggest that Congress also intended for debtors to be able to cure defaults on short-term mortgages which mature or balloon pri- or to the petition date. 184 B.R. at 292. In In re Chang the court considered whether a debtor could modify a residential mortgage that"
},
{
"docid": "10207783",
"title": "",
"text": "332, 113 S.Ct. at 2111 (Stevens, J., concurring). Permitting the bifurcation of home mortgage loans, however, could make lenders more hesitant to make such loans in the first place. Although a broader reading of § 1322(c)(2) might help the Witts today, it could make it more difficult in the future for those similarly situated to the Witts to obtain any financing at all. Congress appears to have designed another important section, § 1322(b)(2), with this result in mind. See id. (stating that § 1322(b)(2)’s “legislative history indicates] that favorable treatment of residential mortgagees was intended to encourage the flow of capital into the home lending market”); Perry, 945 F.2d at 64 (finding that § 1322(b)(2) “was intended to make home mortgage money on affordable terms more accessible to homeowners by assuring lenders that their expectations would not be frustrated”); Grubbs v. Houston First Am. Sav. Ass’n, 730 F.2d 236, 246 (5th Cir. 1984) (noting that the exception for home mortgages in § 1322(b)(2) “was apparently in response to perceptions, or to suggestions advanced in the legislative hearings ... that[ ] homemortgagor lenders, performing a valuable social service through their loans, needed special protection against modification thereof (i.e., reducing installment payments, secured valuations, etc.)”). Even though we conclude that it does not permit bifurcation, § 1322(c)(2) still provides significant relief for homeowners in Chapter 13 who need more flexibility in paying off their mortgage loans. As many bankruptcy courts have already recognized, § 1322(c)(2) will serve primarily to “permitf ] debtors to cure [maturing] obligations by paying the remaining part of the debt over the life of a Chapter 13 plan.” In re Nepil, 206 B.R. 72, 76 (Bankr.D.N.J.1997); see also In re Watson, 190 B.R. 32, 37 (Bankr.E.D.Pa.1995) (“[T]he obvious purpose of § 1322(c)(2) was to serve as the antidote for the theory that § 1322(b)(2) barred the cure of a residential mortgage obligation which matured prepetition.”); In re Escue, 184 B.R. 287, 292 (Bankr.M.D.Tenn.1995) (concluding that under § 1322(c)(2) “Congress intended for debtors to be able to cure ‘stub’ or ‘short-term’ mortgages which mature or balloon prior to filing"
},
{
"docid": "14612354",
"title": "",
"text": "expired prepetition. Although the debtors relied on section 1322(c)(2), the mortgagee failed to address that section, and relied solely on section 1322(b)(2) to support its argument that debtors could not cure a mortgage arrear-age in their Chapter 13 plan. 185 B.R. at 53. The court concluded that section 1322(c)(2) creates an exception to section 1322(b)(2) and proceeded to analyze that section. Id. The court ruled that section 1322(c)(2) allows debtor to cure the mortgage that ballooned prepetition over the life of the plan. Id. The court reasoned that the Bankruptcy Reform Act of 1994 amended the Bankruptcy Code “to permit modification of claims secured only by a security interest on the debtor’s principal residence when the last payment on the original payment schedule is due before the date on which the final payment under the plan is due.” Id. The court clarified that “[although the debtor cannot extend the mortgage term indefinitely, the debtor can pay the mortgage balance over the life of the Chapter 13 plan, a period which may be as long as five years.” Id. Moreover, the court in In re Jones, supra, analyzed whether, given the prepetition maturity of the debtor’s note, 11 U.S.C. § 1322(c)(2) authorizes the debtor to pay the obligation through the plan. The facts in that case are very similar to the ones in the case at bar. The creditor held a note secured solely by a second mortgage over debtor’s residence. The debtor did not pay the final balloon payment which matured by its own terms pre-petition. The debtor’s plan proposed to repay the note, without interests, over the life of the plan. 188 B.R. at 281. The Court explained that although debtor’s proposed plan would not have been con-firmable in the Ninth Circuit prior to 1994 due to the Court of Appeals’ decision in In re Seidel, supra, a case arising from the same state as In re Jones, supra, the amendments made by the Bankruptcy Reform Act allow the debtor to spread the prepetition ballooned mortgage debt over the life of the plan. 188 B.R. at 281-82. After examining"
},
{
"docid": "4551480",
"title": "",
"text": "plan payments. Instead of attempting to proceed under § 1322(c)(2), the debtors have alleged that they are able to cure the default under § 1322(b)(3). This section allows a debtor to cure or waive a default in a chapter 13 plan. A debtor may propose to cure a home mortgage default under this subsection. In re Lake, 245 B.R. 282, 284 (Bankr.N.D.Ohio 2000); 11 U.S.C. § 1322(c)(1). Such a cure is not considered a modification of the debt which is prohibited by § 1322(b)(2). In re Jones, 188 B.R. 281 (Bankr.D.Or.1995); In re Clay, 204 B.R. 786, 790 (Bankr.N.D.Ala. 1996)As with § 1322(c)(2), cures proposed under § 1322(b)(3) for debts which have matured pre-petition must “pay off the debt in installments during the life of the plan.” In re Ibarra, 235 B.R. 204, 209 (Bankr.D.Puerto Rico 1999); In re French, 174 B.R. 1 (Bankr.D.Mass.1994). Additionally, any cure proposed under § 1322(b) must fully comply with the other requirements of §§ 1322 and 1325, including § 1325(a)(5)(B)(iii)(I)’s equal payment provision. Hamilton, 401 B.R. at 544; Clay, 204 B.R. at 790; In re Steinacher, 283 B.R. 768, 773 (9th Cir. BAP 2002). The only conclusion the Court can draw from the law discussing a debtor’s ability to cure a matured home mortgage debt is that any proposed cure must fully comply with § 1325(a)(5). This compliance necessarily involves the equal payment provision of § 1325(a)(5)(B)(iii)(I). The debtors in this case have proposed to cure the Wells Fargo debt by making monthly payments for 59 months and a balloon payment on the last day of the 59th month. Although the debtors are permitted to cure the Wells Fargo note under either § 1322(b)(3) or (c)(2), their proposed balloon payment in the 59th month does not comply with § 1325(a)(5)(B)(iii)(I). The debtors are simply unable to cure the Wells Fargo mortgage by any means other than full payment of the debt in equal monthly installments through their plan. That treatment has not been proposed and, given the debtors’ limited income, the Court feels certain in saying that the Hen-nings would be wholly unable to"
},
{
"docid": "4767378",
"title": "",
"text": "subpart (c), it is logical to conclude that subsection (e)(2) provides an exception to the general prohibition on home mortgage modifications for those mortgages where the last payment happens to fall due during the life of the plan. The courts construing subsection (c)(2) since its enactment in 1994 have uniformly agreed. See In re Sarkese, 189 B.R. 531, 535 (Bankr.M.D.Fla.1995) (subsection 1322(c)(2) creates an exception to subsection 1322(b)(2)); In re Lobue, 189 B.R. 216, 218 (Bankr.S.D.Fla.1995) (“The plain language of Section 1322(c) clearly and explicitly ... removes the protection against the modification of certain mortgages.... ”); In re Jones, 188 B.R. 281, 282 (Bankr.D.Or.1995) (“these provisions [subsection (e)(1) and (2) ] create further exceptions to the § 1322(b)(2) prohibition against modification of the rights of secured creditors holding only liens against the debtor’s residence.”). Furthermore, the Supreme Court has recognized, in a discussion of the limits on § 1322(b) (2)’s protection for home mortgages, that similar “notwithstanding (b)(2)” language found in 1322(b)(5) prefaced an exception to this protection. This court sees no statutory basis for concluding that one “notwithstanding” provision constitutes an exception to § 1322(b)(2), yet another does not. Appalachian does not deny that its mortgage falls within the scope of § 1322(c)(2), that is, the last regularly scheduled payment under the mortgage will fall due during the life of the debtors’ chapter 13 plan, or that § 1322(c)(2) permits the modification of its mortgage pursuant to § 1325(a)(5). Appalachian contends, however, that modification under § 1325(a)(5) consists only of adjustments in the term of the mortgage, the amount of periodic payments or whatever changes may be necessary to cure a home mortgage default and that it does not include the ability to bifurcate an undersecured claim into its secured and unsecured components pursuant to § 506(a) of the Bankruptcy Code as the debtors seek to do. Appalachian notes that § 1322(e)(2) makes no reference to § 506(a) and observes that the legislative history to § 1322(c)(2) indicates that the purpose of the provision was to permit the cure of short-term mortgages which matured or ballooned prepetition. The debtors’"
},
{
"docid": "4551469",
"title": "",
"text": "comply with § 1325(a)(5) of the Bankruptcy Code. Jones, 188 B.R. at 284. Since its enactment, there have been a small number of courts in the Sixth Circuit which have addressed the applicability of § 1322(c)(2). In 1999, the Sixth Circuit issued an unpublished decision in the case of City Bank & Trust Co. v. Glenn (In re Glenn), 1999 WL 68570 (6th Cir.1999). In Glenn, the debtors’ chapter 13 plan provided that the home mortgage creditor would receive $287.31 per month with a balloon payment being made in the 60th month. As a result, the Sixth Circuit found that the plan complied with 1325(a)(5)’s requirement that the value of property to be distributed under the plan was not less than the value of the Bank’s claim. Therefore, the Sixth Circuit held that the debtors’ proposed modification of the loan was permissible under § 1322(c)(2). Glenn, 1999 WL 68570 at *2. Three of the other cases in the Sixth Circuit which have dealt with the applicability of § 1322(c)(2) have all involved the bifurcation of home mortgage claims into secured and unsecured portions. In the case of First Union Mortgage Corp. v. Eubanks (In re Eubanks), 219 B.R. 468 (6th Cir. BAP 1998), the debtors were attempting to modify the second mortgage holder’s claim on their residence. The claim was scheduled to mature prior to conclusion of the debtors’ chapter 13 plan. The bankruptcy court found that § 1322(c)(2) created a narrow exception to § 1322(b)’s prohibition against modification and authorized debtors to cram down undersecured claims. The BAP affirmed the bankruptcy court and found that “ § 1322(c)(2) authorizes the Debtors’ plan to ‘provide for the payment of the claim as modified pursuant to section 1325(a)....’” Id. at 471. Because § 1325(a)(5) “has always dealt only with the treatment of ‘allowed secured claims’ in Chapter 13 cases,” the BAP found that debtors can use § 506(a) to split underse-cured claims into secured and unsecured portions under § 1322(c)(2): It is appropriate to assume that Congress knew in 1994 that the Supreme Court had interpreted § 1325(a)(5) to include bifurcation"
},
{
"docid": "8801580",
"title": "",
"text": "1322 of the Code and now provides that notwithstanding the prohibition set forth in Section 1322(b)(2) of the Code, a debtor is permitted to decelerate a fully ballooned mortgage and deal with it in his or her Chapter 13 Plan by virtue of the amend ment. This Section now provides as follows: (c) Notwithstanding subsection (b)(2) and applicable nonbankruptcy law— (2) in a case in which the last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor’s principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title. 11 U.S.C. § 1322(c)(2). This amendment leaves no doubt that a debtor in a Chapter 13 may deal with a fully matured mortgage provided the mortgage is fully paid off and satisfied before the last payment on the mortgage under the confirmed Chapter 13 Plan is due. The issue, which governs this controversy, has been litigated and considered by several courts. In the case of In re Eubanks, 219 B.R. 468 (6th Cir. BAP 1998), the Sixth Circuit B.A.P. held that when the last payment on the original payment schedule became due before the final payment under the Plan is within the narrow exception to the Code’s anti-modification provision concerning mortgages encumbering the principal residence of a debtor, and it is permissible. Also, in the case of In re Lobue, 189 B.R. 216 (Bankr.M.D.Fla.1995), the debtor proposed to pay the entire balance due on the principal residence of a mortgage in installments over a fifty-three month period of a sixty-month Plan. The bankruptcy court held that that was not an impermissible modification of the mortgage, notwithstanding that the balloon payment matured pre-petition. See also In re Perry, 235 B.R. 603 (S.D.Tex.1999). This Court had also had the opportunity to consider the same issue in the case of In re Padgett, 273 B.R. 277 (Bankr.M.D.Fla. 2001). In that case, this Court agreed that the construction"
},
{
"docid": "10207787",
"title": "",
"text": "of the claim would receive the value of the claim that was still secured after bifurcation. Because the Witts' plan provides for full payment of the portion of United’s claim that is still secured after bifurcation (i.e., $13,100), it would meet the requirements of § 1325(a)(5)(B) as interpreted by the Witts. . United also argues that even if the \"as modified” phrase does apply to \"claim,” the Witts are not allowed to bifurcate under § 1325(a)(5). According to United, \"allowed secured claim” should not be defined by § 506(a); instead, it should be interpreted to mean the full value of the remaining obligation on a secured note. We do not reach this issue because we resolve this case based on our interpretation of § 1322(c)(2). . Several courts have found this passage in the Report to be \"puzzling,\" In re Jones, 188 B.R. 281, 282 (Bankr.D.Or.1995), and \"inconclusive,\" In re Young, 199 B.R. 643, 653 (Bankr.E.D.Tenn. 1996), because of the supposed disjunction between the facts in Perry and the language of § 1322(c)(2). Section 1322(c)(2) only applies to debtors whose last payment to the creditor under the terms of the original contract falls due before the last payment is due under the bankruptcy plan. The facts in Perry do not discuss the payment schedules of either the original contract or the plan. The Jones court found it “strange[ ]\" that \"there is nothing in the Perry opinion which even hints that by the original terms of the parties' contract the mortgage debt would have matured during the life of the proposed plan.” Jones, 188 B.R. at 283; see also Young, 199 B.R. at 652-53 (citing Jones and finding that \"[a]t a minimum, the legislative history is inconclusive”). We do not understand why this disjunction would be puzzling. The Report clearly says that the changes made by § 1322(c)(2) \"overrule the result in [ Perry ] with respect to mortgages on which the last payment on the original payment schedule is due before the date on which the final payment under the plan is due.” Report at 52. Thus, the Report"
},
{
"docid": "8063688",
"title": "",
"text": "of reorganization, and if so, what requirements must be satisfied. Before the enactment of the Bankruptcy Reform Act of 1994, it was impermissible for a debtor to modify the contract rights of a secured claim holder in a Chapter 13 plan of reorganization with respect to the claim secured by debtor’s principal residence. See Nobelman v. American Savings Bank, 508 U.S. 324, -, 113 S.Ct. 2106, 2111, 124 L.Ed.2d 228 (1993). The newly enacted section 1322(c)(2) of the Bankruptcy Code carved out an exception to subsection 1322(b)(2). However, to utilize section 1322(c)(2) one of the three alternatives of 11 U.S.C. § 1325(a)(5) must be satisfied. A. An Exception to the Modification of Home Mortgages This Court will first determine whether this case falls within the parameters of 11 U.S.C. § 1322(c)(2), which states that: (c) Notwithstanding subsection (b)(2) and applicable nonbankruptcy law— (2) in a case in which the last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor’s principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title. 11 U.S.C. § 1322(e)(2) (1994). Neither the Bankruptcy Court of the Middle District of Florida, nor the Eleventh Circuit Court of Appeals has construed section 1322(c)(2). However, other courts that have construed subsection 1322(c)(2) have concluded that this section allows debtors to cure mortgages in their Chapter 13 plan if the last payment of the original payment scheduled for the mortgage is due before the final payment under the plan is due. See In re Escue, 184 B.R. 287 (Bankr.M.D.Tenn.1995); In re Chang, 185 B.R. 50 (Bankr.N.D.Ill.1995); In re Jones, 188 B.R. 281 (Bankr.D.Or.1995). The court in In re Escue ruled that subsection (c)(2) was specifically created to allow the debtors with a “short-term” or “balloon” mortgage payment that matured prepetition to provide for such payments in the life of the plan. Escue, 184 B.R. at 288. The court reasoned that Congress"
},
{
"docid": "18549991",
"title": "",
"text": "to, a lien on the debtor’s principal residence may be cured under paragraph (3) or (5) of subsection (b) until such residence is sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law; and (2) in a case in which the last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor’s principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title. 11 U.S.C. § 1322(c)(1994). Subsection (c)(2) is not applicable to the case at bar. Under Subsection (c)(2), certain mortgages can be modified and provided for in Section 1325(a)(5). As a Chapter 13 plan may not extend beyond five years, this subsection applies only to those cases involving “short-term mortgages, long-term mortgages on which the debtor has nearly completed payment, and mortgages with balloon payments.” In re Escue, 184 B.R. 287, 293 (Bankr.M.D.Tenn.1995). See also In re Eason, 181 B.R. 127, 132-134 (Bankr.N.D.Ala.1995) (a pre-Reform Act ease). Subsection (c)(2) applies by its own language only to mortgages in which the last payment is due before the date of final of payment of the plan and at least one court has found that it is also “intended for debtors to be able to cure “stub” or “short-term” mortgages which mature or balloon prior to filing of the petition.” Escue, 184 B.R. at 292. It does not apply to a case such as this where there has been a pre-petition default, acceleration, foreclosure sale, and recordation of the foreclosure deed. See e.g., In re Ragsdale, 155 B.R. 578, 587 (Bankr.N.D.Ala.1993) (a pre-Reform Act case “approving] of the view that the ‘last payment’ language in Section 1322(b)(5) refers to the date of the last payment of the original note rather than the date the accelerated debt is due.”) This Court finds that the words “last payment” in the phrase “last payment on the original payment schedule” means exactly the same"
},
{
"docid": "20972499",
"title": "",
"text": "decision that a balloon mortgage that matured pre-petition could be satisfied through a plan. In arriving at its decision the court made observations that are pertinent to the matter at hand. The court noted that prior to the 1994 Amendments courts disagreed not only as to whether debtors could cure a mortgage that had fully matured prepetition, but also as to whether debtors could cure mortgages that matured during the life of the plan. Id. at 283. It further observed that the language of § 1322(c)(2) plainly addresses the latter situation but is silent as to mortgages that fully mature prepetition. The court did not find the statutory silence to be an impediment to its conclusion that § 1322(c)(2) should be read to encompass matured prepetition mortgage obligations, because it found that the policy- of aiding debtors in their efforts to retain their homes pervades the amended section. Id. at 284. Furthermore, in light of that policy the court found no reasonable basis to assume that Congress intended that creditors whose mortgages matured by their own terms prepetition would not be subject to Chapter 13 provisions while creditors whose mortgages matured by their own terms just after the bankruptcy filing could have payment of their obligation stretched out over the life of the plan. In essence, the court found no meaningful distinction between such mortgage obligations. Id. In fact, to date, the courts that have addressed the issue of whether § 1322(e)(2) applies to matured or ballooned mortgage obligations have all answered in the affirmative. See also, In re Escue, 184 B.R. 287, 293 (Bankr.M.D.Tenn.1995); In re Sarkese, 189 B.R. 531, 534 (Bankr.M.D.Fla.1995); In re Lobue, 189 B.R. 216, 218 (Bankr.S.D.Fla. 1995). Applying the reasoning of Jones and Chang, this Court finds that the language of § 1322(c)(2) is sufficiently broad so as to apply with equal force and result to a foreclosure judgment. As a practical matter this Court can discern no difference among a fully matured mortgage debt, a mortgage on which the balloon payment is due, and a foreclosure judgment. In each circumstance the holder of the"
},
{
"docid": "8063690",
"title": "",
"text": "intended for debtors to be able to cure defaults on short-term mortgages that matured or ballooned before the petition date under section 1322(c)(2). Id. at 292. Further in In re Chang, although the debtors relied on subsection (c)(2), the mortgagee failed to address that subsection, and relied solely on section 1322(b)(2) to support its argument that debtors cannot cure mortgage arrearage in their Chapter 13 plan. Chang, 185 B.R. at 53. The court concluded that subsection 1322(c)(2) creates an exception to subsection 1322(b)(2) and proceed to analyze that section. Id. The court ruled that subsection 1322(c)(2) allows debtor to cure the mortgage that ballooned prepetition over the life of the plan. Id. The court reasoned that the Bankruptcy Reform Act of 1994 amended the Bankruptcy Code to permit modification of claims secured only by a security interest on the debtors’ principal residence when the last payment on the original payment schedule is due before the date on which the final payment under the plan is due. Id. Finally the court in In re Jones the ruled that subsection (e)(2) allows the debtor to spread the prepetition ballooned mortgage debt over the life of the plan. Jones, 188 B.R. at 281-82. The court reasoned that Congress created subsection (c)(2) to allow debtors to hold on to their residence by paying the mortgage payment through the plan. Id. at 283-84. This Court agrees that section 1322(e)(2) allows the debtors in this case to provide McWilliams with payment of the ballooned mortgage over the life of the Chapter 13 plan. See 11 U.S.C. § 1322(c)(2). Neither debtors nor McWilliams disputes that section 1322(c)(2) applies in this case. (Record at 45, 46). However, one of the three alternatives provided in section 1325(a)(5) must be satisfied to utilize section 1322(c)(2). Thus, the Court now turns to the requirements of section 1325(a)(5). B. Section 1325(a)(5) Modification of an allowed secured claim under the Chapter 13 is provided for in section 1325(a)(5) of the Bankruptcy Code, which states that: (a) Except as provided in subsection (b), the court shall confirm a plan if— (5) with respect to"
},
{
"docid": "8063689",
"title": "",
"text": "due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title. 11 U.S.C. § 1322(e)(2) (1994). Neither the Bankruptcy Court of the Middle District of Florida, nor the Eleventh Circuit Court of Appeals has construed section 1322(c)(2). However, other courts that have construed subsection 1322(c)(2) have concluded that this section allows debtors to cure mortgages in their Chapter 13 plan if the last payment of the original payment scheduled for the mortgage is due before the final payment under the plan is due. See In re Escue, 184 B.R. 287 (Bankr.M.D.Tenn.1995); In re Chang, 185 B.R. 50 (Bankr.N.D.Ill.1995); In re Jones, 188 B.R. 281 (Bankr.D.Or.1995). The court in In re Escue ruled that subsection (c)(2) was specifically created to allow the debtors with a “short-term” or “balloon” mortgage payment that matured prepetition to provide for such payments in the life of the plan. Escue, 184 B.R. at 288. The court reasoned that Congress intended for debtors to be able to cure defaults on short-term mortgages that matured or ballooned before the petition date under section 1322(c)(2). Id. at 292. Further in In re Chang, although the debtors relied on subsection (c)(2), the mortgagee failed to address that subsection, and relied solely on section 1322(b)(2) to support its argument that debtors cannot cure mortgage arrearage in their Chapter 13 plan. Chang, 185 B.R. at 53. The court concluded that subsection 1322(c)(2) creates an exception to subsection 1322(b)(2) and proceed to analyze that section. Id. The court ruled that subsection 1322(c)(2) allows debtor to cure the mortgage that ballooned prepetition over the life of the plan. Id. The court reasoned that the Bankruptcy Reform Act of 1994 amended the Bankruptcy Code to permit modification of claims secured only by a security interest on the debtors’ principal residence when the last payment on the original payment schedule is due before the date on which the final payment under the plan is due. Id. Finally the court in In re Jones the"
},
{
"docid": "4551468",
"title": "",
"text": "is due, the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title. 11 U.S.C. § 1322(c)(2). Courts have found that mortgages which fully mature prior to a debtor’s bankruptcy filing fall within the purview of § 1322(c)(2). In re Escue, 184 B.R. 287, 292 (Bankr.M.D.Tenn.1995); In re Sturgill, 337 B.R. 599 (Bankr.W.D.Ky. 2006); In re Kelly, 283 B.R. 808 (Bankr. M.D.Fla.2002); In re Padgett, 273 B.R. 277, 279 (Bankr.M.D.Fla.2001); In re Nepil, 206 B.R. 72, 76 (Bankr.D.N.J.1997); In re Lobue, 189 B.R. 216 (Bankr.S.D.Fla. 1995); In re Chang, 185 B.R. 50 (Bankr. N.D.Ill.1995); In re Jones, 188 B.R. 281 (Bankr.D.Or.1995); In re Watson 190 B.R. 32 (Bankr.E.D.Pa.1995). If a debt secured only by the debtor’s residence either matures pre-petition or will become due in full prior to conclusion of the plan, the debtor may modify the terms of the loan and pay the balance due over the life of the plan, Escue, 184 B.R. at 292; however, pursuant to § 1322(c)(2)’s language, any proposed modification must comply with § 1325(a)(5) of the Bankruptcy Code. Jones, 188 B.R. at 284. Since its enactment, there have been a small number of courts in the Sixth Circuit which have addressed the applicability of § 1322(c)(2). In 1999, the Sixth Circuit issued an unpublished decision in the case of City Bank & Trust Co. v. Glenn (In re Glenn), 1999 WL 68570 (6th Cir.1999). In Glenn, the debtors’ chapter 13 plan provided that the home mortgage creditor would receive $287.31 per month with a balloon payment being made in the 60th month. As a result, the Sixth Circuit found that the plan complied with 1325(a)(5)’s requirement that the value of property to be distributed under the plan was not less than the value of the Bank’s claim. Therefore, the Sixth Circuit held that the debtors’ proposed modification of the loan was permissible under § 1322(c)(2). Glenn, 1999 WL 68570 at *2. Three of the other cases in the Sixth Circuit which have dealt with the applicability of § 1322(c)(2) have all involved the bifurcation of"
}
] |
837535 | Income Rule, but it has been virtually abandoned because an income only approach divides the refund based on “a factor which may have very little to do with actual contributions to the total tax obligations between spouses.” In re Duarte, 492 B.R. at 105; In re Garbett, 410 B.R. at 285 n. 2; Hundley v. Marsh, 459 Mass. at 81, n. 6, 944 N.E.2d 127 The Income Rule has been seemingly supplanted by the so-called “Withholding Rule” which provides for the division of a joint tax return in proportion with each spouse’s tax withholdings. See Gordon v. U.S., 757 F.2d 1157, 1160 (11th Cir. 1985); Carlson v. Moratzka (In re Carlson), 394 B.R. 491 (8th Cir. BAP 2008); REDACTED Monticello Arcade Ltd. Partnership v. Lyall (In re Lyall), 191 B.R. 78 (E.D. Va. 1996); In re Smith, 310 B.R. 320 (Bankr. N.D. Ohio 2004); In re WDH Howell, LLC, 294 B.R. 613 (Bankr. D.N.J. 2003); In re Gleason, 193 B.R. 387 (Bankr. D.N.H. 1996). The Withholding Rule, which presently appears to be the majority rule, starts with the premise that each spouse has a separate legal interest in the refund, and then quantifies that interest based solely on the percentage of withholdings attributable to each spouse’s income. See In re Carlson, 394 B.R. at 497; In re Kleinfeldt, 287 B.R. at 293; In re Duarte, 492 B.R. at 104; In re Gleason, 193 B.R. at 388. The benefit | [
{
"docid": "4388408",
"title": "",
"text": "the refund because she had no tax withholdings for 2001. The bankruptcy court agreed with the Trustee and denied the Appellants’ motion. III.Discussion The issue is whether a non-debtor spouse who had no tax withholdings for the year in question, who is a homemaker, and who filed joint tax returns with a debtor is entitled to receive half of the tax refund. We conclude that the non-debtor spouse is not entitled to any portion of the tax refund. Three approaches have developed concerning this dilemma. See Lyall, 191 B.R. at 85 (listing the three approaches). The majority approach, and the one adopted herein, holds that the non-debtor spouse who had no tax withholdings for the year in question is not entitled to any portion of a joint tax refund. A non-debtor spouse is only entitled to keep the portion of the tax refund attributable to her tax withholdings. See id. A second approach divides the tax refund between the debtor and non-debtor spouses based on each’s income. See In re Kestner, 9 B.R. 334 (Bankr.E.D.Va.1981). The third approach, and the one advocated by the Appellants, splits the tax refund equally between the spouses regardless of tax withholdings or income. See Loevy v. Aldrich (In re Aldrich), 250 B.R. 907, 913 (Bankr.W.D.Tenn.2000). A. General Principles of Law We start with the principle that filing a petition to commence a bankruptcy case creates an estate which is made up of “all legal or equitable interests of the debtor in property.” 11 U.S.C. § 541(a)(1). An income tax refund can be considered property of the bankruptcy estate. See Segal v. Rochelle, 382 U.S. 375, 380, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966). Cf. Christie v. Royal (In re Christie), 233 B.R. 110, 113 (10th Cir. BAP 1999) (‘We are convinced the cases indicate that the most important factor in making that determination [of whether a tax refund is property of the estate] is not whether the tax liability is based, in whole or in part, on the debtor’s prepetition earnings, but whether the refund was generated, in whole or in part, by the"
}
] | [
{
"docid": "20239218",
"title": "",
"text": "in the refund. See In re Carlson, 394 B.R. 491 (8th Cir. BAP 2008). A bankruptcy court must apply applicable state law to determine whether a debtor held a property interest at the time the petition was filed. See Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979). The parties have cited, and the Court has found, no Georgia case law that addresses the question of how to apportion a joint tax refund between married taxpayers who are not seeking the dissolution of the marriage. In the absence of state court precedence, bankruptcy courts have generally applied three methods to determine the ownership of such joint tax refunds. One method of dividing the joint refund is to do so in proportion to the amount of income earned by each spouse. See In re Verill, 17 B.R. 652 (Bankr.Md.1982). A second group of cases divides the refund based upon the amount of income withheld from each spouse’s income. See In re Kleinfeldt, 287 B.R. 291 (10th Cir. BAP 2002) (non-debtor homemaker spouse was not entitled to any portion of the tax refund generated by withholding from the debtor’s wage because she had no tax withholdings; the filing of a joint tax return does not convert one spouse’s income into the income of the other); In re WDH Howell, LLC, 294 B.R. 613 (Bankr.D.N.J. 2003). Under the third line of authority, the court divides the refund evenly between the spouses, regardless of the income generated by each spouse. These cases are based on three basic principles: 1) state matrimonial law applicable upon the dissolution of the marriage would entitle each spouse to an equal share of the refund; 2) denying one spouse an interest in the tax refund, while holding that spouse liable for any tax owed under a joint return, is inequitable; and 3) denying a homemaker spouse an economic interest in the refund undervalues the economic contribution of a homemaker to the family. See In re Aldrich, 250 B.R. 907 (Bankr.W.D.Tenn.2000); In re Barrow, 306 B.R. 28 (Bankr.W.D.N.Y.2004); In re Marciano, 372 B.R. 211"
},
{
"docid": "19943951",
"title": "",
"text": "Murray, 31 B.R. 499, 501-02 (Bankr.E.D.Pa.1983). While the parties do not dispute that some portion of the tax refund belongs to the estate, Debtor objects to the Trustee’s allocation of the refund. Debtor argues that his wife has a one-half interest in the subject tax refund and therefore her portion is not property of the bankruptcy estate. The Trustee concedes that some portion of the tax refund belongs to Debt- or’s wife, but argues that the pre-petition portion should be allocated proportionally in accordance with the income produced by Debtor and his wife. Thus, the issue to be determined is the amount of the tax refund that constitutes property of Debt- or’s estate. This is an issue of first impression in this district. Bankruptcy courts in other districts have adopted three different approaches to determine the portion of a tax refund to which a debtor’s estate is entitled when a joint tax return has been filed with a non-debtor spouse. The majority approach holds that the tax refund from a joint tax return should be allocated proportionally between the husband and wife in accordance with their respective tax withholdings during the relevant year. See In re Kleinfeldt, 287 B.R. 291, 292 (10th Cir. BAP 2002); In re Edwards, 363 B.R. 55, 58-59 (Bankr.D.Conn.2007); In re Lock, 329 B.R. 856, 860 (Bankr.S.D.Ill.2005); In re Smith, 310 B.R. at 323; In re WDH Howell, LLC, 294 B.R. 613 (Bankr.D.N.J.2003); In re Lyall, 191 B.R. 78, 85 (E.D.Va.1996); In re Gleason, 193 B.R. 387, 389 (Bankr.D.N.H.1996). Similarly, other courts have allocated the joint tax refund proportionally in accordance with income produced, which is the approach proposed by the Trustee in this case. See In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985); In re Verill, 17 B.R. 652, 655 (Bankr.D.Md.1982); In re Kestner, 9 B.R. 334, 336 (Bankr.E.D.Va.1981); In re Colbert, 5 B.R. 646, 648-49 (Bankr.S.D.Ohio 1980). The minority approach, advocated by the Debtor, holds that joint tax refund should be allocated equally between the husband and wife without regard to tax withholdings or income produced. See In re Innis, 331 B.R. 784, 787 (Bankr.C.D.Ill.2005);"
},
{
"docid": "3440386",
"title": "",
"text": "exemption the items of the owned and possessed personal property, including money and funds on deposit with a bank or other financial institution, up to the aggregate value of four thousand dollars ($4,000) debtor’s equity interest. Tenn.Code Ann. § 26-2-103. The Debtors contend that, since the refund resulted from the filing of their joint tax return, they hold it as tenants by the entireties and, pursuant to In re Hensley, 393 B.R. 186 (Bankr.E.D.Tenn.2008), they may each claim an exemption in one-half of the proceeds. The Trustee, however, contends that since Mrs. Garbett earned the majority of the income represented on the joint tax return, any exemption in the refund must be likewise apportioned. When faced with the question of allocating tax refunds in bankruptcy cases, courts have generally adopted one of two approaches: the Withholding Rule or the 50/50 Refund Rule. The Withholding Rule provides for the division of a joint tax refund in proportion with each spouse’s tax withholdings. See, e.g., Carlson v. Moratzka (In re Carlson), 394 B.R. 491 (8th Cir. BAP 2008) (affirming the bankruptcy court’s adoption of the rule under Minnesota law); Kleinfeldt v. Russell (In re Kleinfeldt), 287 B.R. 291 (10th Cir. BAP 2002) (affirming the bankruptcy court but not applying state law). Conversely, the 50/50 Refund Rule provides that each debtor is entitled to claim fifty percent of the tax refund, subject to a rebuttable presumption. For some courts, this rule relies heavily upon a correlation with state domestic relations law, primarily the division of assets in a divorce. See, e.g., In re Trickett, 391 B.R. 657 (Bankr.D.Mass. 2008); In re Marciano, 372 B.R. 211 (Bankr.S.D.N.Y.2007); In re Innis, 331 B.R. 784 (Bankr.C.D.Ill.2005) (adopting the 50/50 Refund Rule without any sort of rebuttable presumption); In re Barrow, 306 B.R. 28 (Bankr.W.D.N.Y.2004); Loevy v. Aldrich (In re Aldrich), 250 B.R. 907 (Bankr.W.D.Tenn.2000). After analyzing the approaches, the court finds that the 50/50 Refund Rule, subject to rebuttal based on the circumstances of each individual case, is most compatible with Tennessee law. It is \"well-settled\" in Tennessee that spouses may own both realty and personal"
},
{
"docid": "18154659",
"title": "",
"text": "of the debt- or in property” as of the petition date. See 11 U.S.C. § 541(a). The scope of estate property is very broad and includes every conceivable interest held by the debtor in property. See In re Smith, 310 B.R. 320, 322 (Bankr.N.D.Ohio 2004). Therefore, proceeds due from a tax overpayment, as in this case, become property of the estate to the extent the overpayment was made prepetition. Id. Despite the broad scope of § 541, however, property of a debtor’s estate does not include a third-party’s interest in property co-owned with the debtor. See, e.g., 11 U.S.C. § 363(h). It is upon this basis that the debtor argues that his wife’s one-half interest in the subject tax refund is not property of his bankruptcy estate. Neither this Court nor the Seventh Circuit Court of Appeals has ruled on the issue of whether a non-debtor spouse who earned no income and made no tax with-holdings during the tax year nevertheless has a property interest in a tax refund received after filing a joint return. Among courts that have considered the issue, a majority have held that a non-debtor spouse with no tax withholdings is not entitled to any portion of a couple’s tax refund, as the spouse’s interest is limited to that portion of the refund attributable to his or her withholdings. See In re Kleinfeldt, 287 B.R. 291, 294 (10th Cir. BAP 2002); In re Smith, 310 B.R. at 323; In re WDH Howell, LLC, 294 B.R. 613, 620 (Bankr.D.N.J.2003); In re Gleason, 193 B.R. 387, 389 (Bankr.D.N.H.1996); see also Gordon v. United States, 757 F.2d 1157, 1160 (11th Cir.1985). These courts reason that a tax refund is essentially a “repayment” by the government of an overpayment made by the taxpayer. See Kleinfeldt, 287 B.R. at 293. If a non-debtor spouse has neither withheld nor paid estimated taxes, all of the money withheld, “and consequently all of the refund,” must have originated from, and remains, property of the debtor alone. Gleason, 193 B.R. at 389. It follows, then, that some payment or withholding must have been made by"
},
{
"docid": "18154660",
"title": "",
"text": "Among courts that have considered the issue, a majority have held that a non-debtor spouse with no tax withholdings is not entitled to any portion of a couple’s tax refund, as the spouse’s interest is limited to that portion of the refund attributable to his or her withholdings. See In re Kleinfeldt, 287 B.R. 291, 294 (10th Cir. BAP 2002); In re Smith, 310 B.R. at 323; In re WDH Howell, LLC, 294 B.R. 613, 620 (Bankr.D.N.J.2003); In re Gleason, 193 B.R. 387, 389 (Bankr.D.N.H.1996); see also Gordon v. United States, 757 F.2d 1157, 1160 (11th Cir.1985). These courts reason that a tax refund is essentially a “repayment” by the government of an overpayment made by the taxpayer. See Kleinfeldt, 287 B.R. at 293. If a non-debtor spouse has neither withheld nor paid estimated taxes, all of the money withheld, “and consequently all of the refund,” must have originated from, and remains, property of the debtor alone. Gleason, 193 B.R. at 389. It follows, then, that some payment or withholding must have been made by the recipient of the refund in the first place. Kleinfeldt, at 293. By contrast, a minority of courts have found that a tax refund should be divided equally between a debtor and non-debtor spouse regardless of their respective tax withholdings or income. See In re Hejmowski, 296 B.R. 645, 646 (Bankr.W.D.N.Y.2003); In re Aldrich, 250 B.R. 907, 913 (Bankr.W.D.Tenn.2000); see also In re Barrow, 306 B.R. 28, 31 (Bankr.W.D.N.Y.2004). Courts adopting this approach look to state matrimonial law, which directs courts to consider both monetary and non-monetary contributions of spouses in making an equitable distribution of marital assets. See Aldrich, 250 B.R. at 912. Applying this rationale to the determination of property interests generally, these courts reason that when a non-debtor spouse performs “valuable but economically uncompensated services” for the family that “help give rise to” a joint tax refund, it is only fair and equitable to allow that spouse a joint interest in the tax refund. Id. The debtor in this case relies on the rationale of the minority courts, arguing that it would"
},
{
"docid": "10899098",
"title": "",
"text": "re Crowson, 431 B.R. at 490 n. 20 (citing 26 U.S.C. § 6401(b)(1); 26 C.F.R. § 301.6401-1); Hundley v. Marsh, 459 Mass. 78, 85, 944 N.E.2d 127, 133 (Mass.2011). As recently noted by the Crowson court, the Withholding Rule is an appropriate method only where a joint tax return consists solely of returns from withholdings made by one spouse and does not involve any tax credits or other credits. In re Crowson, 431 B.R. at 490 n. 19. For these reasons, the 10th Circuit BAP has limited the application of In re Kleinfeldt, its prior decision adopting the Withholding Rule, to cases where a joint tax return consists solely of returns of one spouse’s wage withholdings. Id. A second approach is the “50/50 Rule.” While it is considered a minority approach, it has been adopted by Bankruptcy Courts in New York and has gained a following in other jurisdictions as well. Unlike the Withholding Rule, the 50/50 Rule does not start with the premise that each spouse has a separate legal interest in a tax refund. Instead, the refund is divided equally, based on an application of § 326 of the New York Domestic Relations Law (“DRL”) regarding division of marital property in a divorce proceeding. In re Hejmowski, 296 B.R. at 648-49; In re Marciano, 372 B.R. at 216; In re Barrow, 306 B.R. at 31; and In re Glenn, 430 B.R. at 62. The argument for adopting the 50/50 Rule in New York is that the DRL “offers an illustrative definition [of marital property] that provides a useful device for apportioning ownership.” In re Marciano, 372 B.R. at 215; see also In re Hejmowski, 296 B.R. at 649-50. The Bankruptcy Court in In re Marciano opined on the fairness of a 50/50 division, and proffered that the Second Circuit Court of Appeals relied on DRL § 326 to determine the scope of property of the estate in a Chapter 7 proceeding. 372 B.R. at 215 (citing Musso v. Ostashko, 468 F.3d at 99). Some courts treat the 50/50 division as a rebutta-ble presumption, which may be adjusted based"
},
{
"docid": "20239222",
"title": "",
"text": "U.S.C. § 522(m). Contrary to the Debtors’ suggestion, the Trustee is not asking the Court to change its position on the apportionment of a joint asset. The law has always required the Court to respect the individual ownership of property by spouses in a joint case unless the cases have been substantively consolidated. Those bankruptcy courts adopting what is often referred to as the “majority” rule — that the refund should be divided based upon the withholding — have done so in reliance upon the fact that the applicable state law does not presume equal ownership of property by spouses. See Carlson, 394 B.R. at 494 (applying Minnesota law); In re Smith, 310 B.R. 320 (Bankr.N.D.Ohio 2004) (applying Ohio law). Georgia law, like that applicable in the Carlson case, has no presumption of equal ownership of property between spouses. See O.C.G.A. § 19-3-9 (“The separate property of each spouse shall remain the separate property of that spouse, except as provided in Chapters 5 and 6 of this title and except as otherwise provided by law.”). The funds earned by one spouse from employment during the marriage, therefore, remain the separate property of that spouse unless the spouse takes an action to transfer an interest in those funds to the other spouse or the parties divorce and a court divides the funds equitably. As noted in Carlson, the “tax refund essentially represents the government’s repayment to the taxpayer of an overpayment made by that taxpayer,” and, consequently, “such a refund is the property of the spouse who earned the income and overpaid the tax.” Carlson, 394 B.R. at 494. The filing of a. joint income tax return is not a sufficient action to transfer the property from one spouse to another. See id.; see also In re WDH Howell, LLC, 294 B.R. 613, 619-20 (Bankr.D.N.J.2003); Gordon v. United States, 757 F.2d 1157 (11th Cir.1985) (“Where spouses claim a refund under a joint return, the refund is divided between the spouses, with each receiving a percentage of the refund equivalent to his or her proportion of the withheld tax payments.”); United States"
},
{
"docid": "1061696",
"title": "",
"text": "falling within the definition of “all legal or equitable interests of the debtor in property as of the commencement of the case,” is property of the bankruptcy estate under Section 541(a)(1). In re Moody, 241 B.R. 238 (Bankr.M.D.Fla.1999); See Kokoszka v. Belford, 417 U.S. 642, 648, 94 S.Ct. 2431, 2435, 41 L.Ed.2d 374 (1974) (tax refund property within meaning of Section 70(a)(5) of the Bankruptcy Act); Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Edüd 428 (1966). That a debtor’s rights in a tax refund are determined under state law is not subject to dispute. In re WDH Howell, LLC, 294 B.R. 613 (Bankr.D.N.J.2003). However, because a federal tax refund is a creature of federal tax law, rights created thereunder cannot be ignored. See, Butner v. U.S., 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979) (general rule that property interests are defined by state law tempered by exception where “federal interest” may require a “different result”). Courts have taken differing approaches in determining the portion of a tax refund to which a debtor’s estate is entitled when a joint tax return has been filed with a nondebtor spouse. The majority of courts considering the issue have apportioned the tax refund according to the income tax withheld from each taxpayer. In re Kleinfeldt, 287 B.R. 291 (10th Cir. BAP 2002); In re Smith, 310 B.R. 320 (Bankr.N.D.Ohio 2004); WDH Howell, supra; In re Lyall, 191 B.R. 78 (E.D.Va.1996). Regarding the refund of excess withholding tax as a repayment of earnings from employment, those courts allocate the refund according to each spouse’s contribution to the tax withholdings. Primary significance is placed upon the general rule that the filing of a joint return does not create an interest in one spouse in the other spouse’s income or otherwise alter property rights as between the taxpayers. In re Wetteroff, 453 F.2d 544 (8th Cir.1972). The TRUSTEE urges the Court to adopt this approach. Other courts have adopted a different position, holding that a tax refund should be allocated between spouses based upon the income earned by each spouse."
},
{
"docid": "20239219",
"title": "",
"text": "homemaker spouse was not entitled to any portion of the tax refund generated by withholding from the debtor’s wage because she had no tax withholdings; the filing of a joint tax return does not convert one spouse’s income into the income of the other); In re WDH Howell, LLC, 294 B.R. 613 (Bankr.D.N.J. 2003). Under the third line of authority, the court divides the refund evenly between the spouses, regardless of the income generated by each spouse. These cases are based on three basic principles: 1) state matrimonial law applicable upon the dissolution of the marriage would entitle each spouse to an equal share of the refund; 2) denying one spouse an interest in the tax refund, while holding that spouse liable for any tax owed under a joint return, is inequitable; and 3) denying a homemaker spouse an economic interest in the refund undervalues the economic contribution of a homemaker to the family. See In re Aldrich, 250 B.R. 907 (Bankr.W.D.Tenn.2000); In re Barrow, 306 B.R. 28 (Bankr.W.D.N.Y.2004); In re Marciano, 372 B.R. 211 (Bankr.S.D.N.Y.2007). For the reasons stated by the Eighth Circuit Bankruptcy Appellate Panel in In re Carlson, 394 B.R. 491 (8th Cir.BAP 2008), the Court agrees that relying upon the treatment of a tax refund in the event the debtors divorce is not appropriate. The relevant inquiry is not whether Mrs. Evans might be entitled to seek an equitable distribution of the funds upon some future dissolution of the marriage, but rather, whether she had a right to the funds at the time of the filing and whether that right subsequently became part of her bankruptcy estate, as opposed to her husband’s bankruptcy estate. As the court noted in Carlson, the goal of marital dissolution law is to equitably distribute assets between spouses, whereas the question of property ownership in this instance implicates the rights of each of the debtor’s creditors to each of the debtor’s assets. See also In re Crowson, 431 B.R. 484, 489 (10th Cir.BAP2010). The Debtors encourage the Court to respect the “family unit” by treating the Debtors as one. These Debtors’"
},
{
"docid": "8615310",
"title": "",
"text": "proportionately. One such approach to allocating the ownership of joint tax refunds holds that a joint refund should be allocated between spouses based upon the individuals’ respective tax withholdings during the taxable year. Id. at *1. As such, a non-debtor spouse who had no tax with-holdings during the relevant taxable year is not entitled to any portion of the tax refund, with the rationale that one who pays no taxes is not entitled to a refund. Id.; see also In re Kleinfeldt, 287 B.R. 291 (10th Cir. BAP 2002); In re Gleason, 193 B.R. 387 (Bankr.D.N.H.1996). A third approach, known as the Separate Filings Rule or Internal Revenue Service Formula, requires a determination of what each spouse’s contributions and tax liabilities would have been if filed separately, and applies that proportion to the joint tax refund resulting from filing the joint return. See In re Crowson, 431 B.R. 484, 491-96 (10th Cir.BAP2010). The Separate Filings Rule or Internal Revenue Service Formula apportions the refund between spouses based upon their respective tax liability and contributions, which may also allocate credit for nonfinancial contributions in the nature of tax credits. Id. As mentioned earlier, here, the Bankruptcy court elected to use the 50/50 allocation and the Court’s analysis will begin with this approach. B. The 50/50 Approach The Trustee has offered several arguments as to why the 50/50 Approach should be applied in this case and in the Southern District of Indiana in general. First, the Trustee argues that because Mr. Lee, by filing the joint Returns, would have been jointly and severally liable for any tax deficiency arising from the Returns, even if such deficiency was solely due to Mrs. Lee’s income, he should have a corresponding joint interest in the Refund. See 26 U.S.C. § 6013(d)(3) (“[I]f a joint return is made, tax shall be computed on the aggregate income and the liability with respect to the tax shall be joint and several.”). Although this rationale has been used by other courts in deciding this issue, see Smith, 2011 WL 345865, at *2; In re Aldrich, 250 B.R. 907, 913"
},
{
"docid": "10899097",
"title": "",
"text": "(Bankr.D.N.J.2003); and Gordon v. U.S., 757 F.2d 1157, 1160 (11th Cir.1985) (“Where spouses claim a refund under a joint return, the refund is divided between the spouses, with each receiving a percentage of the refund equivalent to his or her proportion of the withheld tax payments.”). Each spouse has a separate legal interest in the refund based solely upon the percentage of withholdings attributable to each spouse’s income. If this approach were adopted in this case, 100% of the Federal and State income tax refunds would be deemed property of the Debtor’s estate. The Withholding Rule has been criticized by some courts because it only considers one component which creates the refund, namely, the monies withheld from each spouse’s salary. In cases such as this where both spouses earn income, both spouses may have accrued tax credits such as earned income credits, education credits and additional child tax credits, which are treated as payments pursuant to section 6401 of the Internal Revenue Code (“IRC”) and can affect the amount of an income tax refund. In re Crowson, 431 B.R. at 490 n. 20 (citing 26 U.S.C. § 6401(b)(1); 26 C.F.R. § 301.6401-1); Hundley v. Marsh, 459 Mass. 78, 85, 944 N.E.2d 127, 133 (Mass.2011). As recently noted by the Crowson court, the Withholding Rule is an appropriate method only where a joint tax return consists solely of returns from withholdings made by one spouse and does not involve any tax credits or other credits. In re Crowson, 431 B.R. at 490 n. 19. For these reasons, the 10th Circuit BAP has limited the application of In re Kleinfeldt, its prior decision adopting the Withholding Rule, to cases where a joint tax return consists solely of returns of one spouse’s wage withholdings. Id. A second approach is the “50/50 Rule.” While it is considered a minority approach, it has been adopted by Bankruptcy Courts in New York and has gained a following in other jurisdictions as well. Unlike the Withholding Rule, the 50/50 Rule does not start with the premise that each spouse has a separate legal interest in a tax"
},
{
"docid": "1061697",
"title": "",
"text": "to which a debtor’s estate is entitled when a joint tax return has been filed with a nondebtor spouse. The majority of courts considering the issue have apportioned the tax refund according to the income tax withheld from each taxpayer. In re Kleinfeldt, 287 B.R. 291 (10th Cir. BAP 2002); In re Smith, 310 B.R. 320 (Bankr.N.D.Ohio 2004); WDH Howell, supra; In re Lyall, 191 B.R. 78 (E.D.Va.1996). Regarding the refund of excess withholding tax as a repayment of earnings from employment, those courts allocate the refund according to each spouse’s contribution to the tax withholdings. Primary significance is placed upon the general rule that the filing of a joint return does not create an interest in one spouse in the other spouse’s income or otherwise alter property rights as between the taxpayers. In re Wetteroff, 453 F.2d 544 (8th Cir.1972). The TRUSTEE urges the Court to adopt this approach. Other courts have adopted a different position, holding that a tax refund should be allocated between spouses based upon the income earned by each spouse. In re Verill, 17 B.R. 652 (Bankr.D.Md.1982); In re Kestner, 9 B.R. 334 (Bankr.E.D.Va.1981). These positions can cut both ways, sometimes giving the bankruptcy estate a larger share of the refund, sometimes not, depending upon whether the debtor spouse or the non-filing spouse had greater income or withholdings. Still other courts have adopted a third approach, advocated by the DEBTOR, that incorporates a marital partnership theory, holding that the refund is presumed to be split equally between the spouses, without regard to their individual earnings or with-holdings. In re Barrow, 306 B.R. 28 (Bankr.W.D.N.Y.2004); In re Aldrich, 250 B.R. 907 (Bankr.W.D.Tenn.2000). The Barrow and Aldrich courts rejected the decisions allocating tax refunds on the basis of income earned or taxes withheld. The Barrow court, in particular, makes the following well-reasoned analysis as to why both approaches are ill-founded: I disagree with those courts that allocate refunds in proportion either to income or amount of withholdings. The reality of the Internal Revenue Code is that the total tax is not necessarily linked to income, while the"
},
{
"docid": "12640917",
"title": "",
"text": "other spouse or a court distributes the funds equitably in a divorce proceeding. Evans, 2010 WL 6612501, at *3 (citing O.C.G.A. § 19-3-9). The majority of bankruptcy courts that have addressed the allocation of a joint tax refund between spouses hold that the refund should be apportioned based upon the respective tax withholdings of the spouses because the applicable state law in their jurisdictions does not presume equal ownership of property by spouses. See, e.g., Carlson, 394 B.R. at 494 (applying Minnesota law); In re Edwards, 400 B.R. 345 (D.Conn.2008) (applying Connecticut law); In re W.D.H. Howell, LLC, 294 B.R. 613 (Bankr.D.N.J.2003) (applying New Jersey law); In re Lock, 329 B.R. 856 (Bankr.S.D.Ill.2005) (applying Illinois law); In re Smith, 310 B.R. 320 (Bankr.N.D.Ohio 2004) (applying Ohio law). The applicable law in Georgia is consistent with the applicable law in those jurisdictions that hold this majority position. Consistent with the analysis of the majority of bankruptcy courts, the Eleventh Circuit Court of Appeals has held that “[w]here spouses claim a refund under a joint return, the refund is divided between the spouses, with each receiving a percentage of the refund equivalent to his or her proportion of the withheld tax payments,” Gordon v. United States, 757 F.2d 1157, 1160 (11th Cir.1985). A “tax refund essentially represents the government’s repayment to the taxpayer of an overpayment made by that taxpayer,” and, consequently, “such a refund is the property of the spouse who earned the income and overpaid the tax.” Evans, 2010 WL 6612501, at *3 (quoting Carlson, 394 B.R. at 494) (internal quotation marks omitted). “Put more simply, you take out what you put in.” Edwards, 400 B.R. at 346. “Put another way, the maker of the overpayment is entitled to the credit or refund ...” Kemp v. United States, 131 F.R.D. 212, 213 (N.D.Ga.1990) (quoting Gens v. United States, 230 Ct.Cl. 42, 673 F.2d 366, 368 (1982)) (internal quotation marks omit ted) (refund apportionable to extent of contribution to overpayment of tax). The mere filing of a joint income tax return does not result in a transfer of property from one"
},
{
"docid": "20239223",
"title": "",
"text": "The funds earned by one spouse from employment during the marriage, therefore, remain the separate property of that spouse unless the spouse takes an action to transfer an interest in those funds to the other spouse or the parties divorce and a court divides the funds equitably. As noted in Carlson, the “tax refund essentially represents the government’s repayment to the taxpayer of an overpayment made by that taxpayer,” and, consequently, “such a refund is the property of the spouse who earned the income and overpaid the tax.” Carlson, 394 B.R. at 494. The filing of a. joint income tax return is not a sufficient action to transfer the property from one spouse to another. See id.; see also In re WDH Howell, LLC, 294 B.R. 613, 619-20 (Bankr.D.N.J.2003); Gordon v. United States, 757 F.2d 1157 (11th Cir.1985) (“Where spouses claim a refund under a joint return, the refund is divided between the spouses, with each receiving a percentage of the refund equivalent to his or her proportion of the withheld tax payments.”); United States of America v. MacPhail, 2005 WL 2206681, at *3 (6th Cir.2005) (in the case of joint filers, the filing of a joint return does not convert the income of one spouse to the income of another and, accordingly, an overpayment of tax should be disbursed to the person who made the overpayment). That being said, the Court agrees with the reasoning of the court in In re Barrow, 306 B.R. 28 (Bankr.W.D.N.Y.2004), that an irrebuttable presumption that the joint tax refund is owned in proportion to the amount of tax withholdings is not appropriate. As the Debtors have argued, and the Barrow court remarked upon, the reality is that a tax refund, especially when dealing with lower income debtors, likely results from refundable tax credits, rather than withholdings from wages or estimated tax payments. See also Crowson, 431 B.R. at 490 (noting that the Internal Revenue Code treats refundable tax credits as “payments” toward tax liability). When the tax refund itself exceeds the amount of the withholding from either spouse, dividing the refund solely in"
},
{
"docid": "10899095",
"title": "",
"text": "applies to determine each spouse’s specific property rights in a joint federal tax refund. In re Haedo, 211 B.R. 149, 153 (Bankr.S.D.N.Y.1997) (citing In re Honomichl, 82 B.R. 92, 94 (Bankr.S.D.Iowa 1987); and In re Taylor, 22 B.R. 888, 890 (Bankr.N.D.Ohio 1982)). See also Callaway v. C.I.R., 231 F.3d 106, 117 (2d Cir.2000) (federal tax law “ ‘creates no property rights but merely attaches consequences, federally defined, to rights created under state law’”) (citing United States v. National Bank of Commerce, 472 U.S. 713, 722, 105 S.Ct. 2919, 86 L.Ed.2d 565 (1985) (other citations omitted)). Debtor’s Legal Interest in Joint Tax Refund There is no applicable New York statute which defines or governs the rights of spouses to tax refunds. In re Marciano, 372 B.R. at 215; In re Barrow, 306 B.R. at 30. Because this issue cannot be resolved by a specific New York statute, courts have turned to other areas of the law for guidance. Bankruptcy Courts in New York and in other jurisdictions without applicable statutes have relied individually or in concert where appropriate on domestic relations law or specific provisions of the Internal Revenue Code to create a workable process to resolve this issue. As a result, four different approaches have emerged. The approach the Trustee urges the Court to adopt is known as the “Withholding Rule,” and is considered the majority approach. Under the Withholding Rule, the tax refund is divided based upon the extent to which the refund is attributable to the separate withholdings of each spouse. See In re Carlson, 394 B.R. 491, 494 (8th Cir.BAP2008); In re Kleinfeldt, 287 B.R. 291, 294-95 (10th Cir. BAP2002); and In re Smith, 310 B.R. 320, 323 (Bankr.N.D.Ohio 2004). This approach has been adopted in districts where applicable state law does not presume equal ownership of property by spouses. The Withholding Rule starts with the premise that the mere filing of a joint income tax return is not a sufficient action to transfer any refund from one spouse to another. In re Carlson, 394 B.R. at 495-96; In re WDH Howell, LLC, 294 B.R. 613, 619-20"
},
{
"docid": "12147453",
"title": "",
"text": "joint income tax refund is attributable has no ownership interest in the refund. As a result, Coal-ee was not entitled to claim exemptions in the refunds resulting solely from Brian’s withholdings. The Bankruptcy Court’s Order sustaining the Trustee’s objection to her exemption is, therefore, AFFIRMED. . The Honorable Nancy C. Dreher, Chief Bankruptcy Judge, United States Bankruptcy Court for the District of Minnesota. . First Nat'l Bank of Olathe v. Pontow (In re Pontow), 111 F.3d 604, 609 (8th Cir.1997); Sholdan v. Dietz (In re Sholdan), 108 F.3d 886, 888 (8th Cir.1997); Fed. R. Bankr.P. 8013. . In re Kleinfeldt, 287 B.R. 291, 292 (10th Cir. BAP 2002). . In re Benn, 491 F.3d 811, 813 (8th Cir.2007) (\"A debtor’s anticipated tax refund, to the extent it is attributable to events occurring prior to the filing of the petition for bankruptcy, is part of the bankruptcy estate.”). .See Thomas v. Peyton, 274 B.R. 450, 456 (E.D.Va.2001) (“When spouses file a joint petition for bankruptcy, the separate estates are administratively consolidated for convenience and efficiency but they remain legally distinct for purposes of satisfying creditors' claims.”); In re Beck, 298 B.R. 616, 624 (Bankr.W.D.Mo. 2003) (\"Although the filing of a joint case creates an estate under 11 U.S.C. § 541, separate estates exist for each debtor, unless or until the court orders substantive consolidation.”); 11 U.S.C. § 522(m) (\"Subject to the limitation in subsection (b), this section shall apply separately with respect to each debtor in a joint case.”). . See In re Kleinfeldt, 287 B.R. at 292 (listing the three approaches) (citing In re Lyall, 191 B.R. 78, 85 (E.D.Va.1996)). . See, e.g., Kleinfeldt, 287 B.R. at 292-93; In re WDH Howell, 294 B.R. 613, 618 (Bankr. D.N.J.2003); In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985). . See, e.g., In re Kestner, 9 B.R. 334 (Bankr. E.D.Va.1981). . See, e.g., In re Trickett, 391 B.R. 657 (Bankr. D.Mass.2008); In re Marciano, 372 B.R. 211 (Bankr.S.D.N.Y.2007). In re Barrow, 306 B.R. 28 (Bankr. W.D.N.Y.2004); In re Hejmowski, 296 B.R. 645 (Bankr.W.D.N.Y. 2003); Loevy v. Aldrich (In re Aldrich), 250 B.R. 907, 913"
},
{
"docid": "3440389",
"title": "",
"text": "an objecting party can prove, through the introduction of evi-dentiary proof to the contrary that the spouses intended otherwise, each is presumed to be the one-half owner of the whole. In contrast, the Withholding Rule, which “holds that a non-debtor spouse who has had no tax withholdings for the year in question is not entitled to any of a joint tax refund[,]” Kleinfeldt, 287 B.R. at 293, is based primarily upon the premise that “[t]he filing of joint tax returns does not alter property rights between husband and wife. In particular, the filing of a joint return does not have the effect of converting the income of one spouse into the income of another.” Callaway v. Comm’r, 231 F.3d 106, 117 (2d Cir.2000); see also In re Lock, 329 B.R. 856 (Bankr.S.D.Ill. 2005) (“Although joint federal filings are authorized by § 6013(a) of the Internal Revenue Code, 26 U.S.C. § 6013(a), this provision does not propose, nor does it imply, that any property rights are altered by a joint income tax filing.”). The primary difference, however, between those courts adopting the Withholding Rule and those adopting the 50/50 Refund Rule is the applicable underlying state law. In reaching its determination to adopt the Withholding Rule, the Carlson court, applying Minnesota property law, pointed out that it “is neither a community property nor a tenancy by entireties state, and, in general, has no presumption of equal ownership between spouses. Rather, with certain limited exceptions, a spouse in Minnesota is presumed to separately own property titled in his or her own name.” Carlson, 394 B.R. at 494. Similarly, the court in In re Smith endorsed the Withholding Rule by finding that “Ohio law explicitly leaves property rights unaltered by the fact of marriage. Neither husband nor wife has any interest in the property of the other, except (implicit in the duty to support), the right to dower, and the right to remain in the mansion house after the death of either.” 310 B.R. 320, 323 (Bankr.N.D.Ohio 2004) (quoting In re Taylor, 22 B.R. 888, 890 (Bankr.N.D.Ohio 1982) (internal citations, quotations, and parentheticals"
},
{
"docid": "10899096",
"title": "",
"text": "where appropriate on domestic relations law or specific provisions of the Internal Revenue Code to create a workable process to resolve this issue. As a result, four different approaches have emerged. The approach the Trustee urges the Court to adopt is known as the “Withholding Rule,” and is considered the majority approach. Under the Withholding Rule, the tax refund is divided based upon the extent to which the refund is attributable to the separate withholdings of each spouse. See In re Carlson, 394 B.R. 491, 494 (8th Cir.BAP2008); In re Kleinfeldt, 287 B.R. 291, 294-95 (10th Cir. BAP2002); and In re Smith, 310 B.R. 320, 323 (Bankr.N.D.Ohio 2004). This approach has been adopted in districts where applicable state law does not presume equal ownership of property by spouses. The Withholding Rule starts with the premise that the mere filing of a joint income tax return is not a sufficient action to transfer any refund from one spouse to another. In re Carlson, 394 B.R. at 495-96; In re WDH Howell, LLC, 294 B.R. 613, 619-20 (Bankr.D.N.J.2003); and Gordon v. U.S., 757 F.2d 1157, 1160 (11th Cir.1985) (“Where spouses claim a refund under a joint return, the refund is divided between the spouses, with each receiving a percentage of the refund equivalent to his or her proportion of the withheld tax payments.”). Each spouse has a separate legal interest in the refund based solely upon the percentage of withholdings attributable to each spouse’s income. If this approach were adopted in this case, 100% of the Federal and State income tax refunds would be deemed property of the Debtor’s estate. The Withholding Rule has been criticized by some courts because it only considers one component which creates the refund, namely, the monies withheld from each spouse’s salary. In cases such as this where both spouses earn income, both spouses may have accrued tax credits such as earned income credits, education credits and additional child tax credits, which are treated as payments pursuant to section 6401 of the Internal Revenue Code (“IRC”) and can affect the amount of an income tax refund. In"
},
{
"docid": "3440397",
"title": "",
"text": "2008 tax refund in the amount of $4,797.00, is OVERRULED. . Tennessee Code Annotated § 26-2-103 provides that \"[p]ersonal property to the aggregate value of four thousand dollars ($4,000) debtor's equity interest shall be exempt from execution, seizure or attachment....” Tenn. Code Ann. § 26-2-103. Here, the Debtors claim a joint exemption of $7,527.00 in their personal property, allocating fifty percent (50%), or $3,763.50, to each Debtor. Of this amount, $2,398.50 represents 50% of the $4,797.00 tax refund claimed exempt by each Debtor. The allocation of the additional $236.50 of the tax refund to Mrs. Garbett would maximize her exemption in the refund at $2,635.00 thus capping her exemptions at the $4,000.00 statutory maximum. . A few decisions refer to a third approach, the Income Rule, in which the refund is divided in proportion to the income generated by each spouse. See, e.g., In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985). This approach, however, appears to have been abandoned due to state law decisions holding that joint tax refunds may be held by debtors as entire-ties property. See Dillworth v. Hinton (In re Hinton), 378 B.R. 371 (Bankr.M.D.Fla.2007); In re Kossow, 325 B.R. 478 (Bankr.S.D.Fla. 2005). Additionally, while the majority of these cases were decided in the context of accounting for the allocation of a joint tax refund for a non-filing spouse, two cases do address the issue of a joint tax refund in a jointly filed bankruptcy case. See Carlson v. Moratzka (In re Carlson), 394 B.R. 491 (8th Cir. BAP 2008) (adopting the Withholding Rule); In re Hejmowski, 296 B.R. 645 (Bankr.W.D.N.Y. 2003) (adopting the 50/50 Refund Rule). . Tennessee’s division of marital property statute provides, in part, as follows: (a)(1) In all actions for divorce or legal separation, the court having jurisdiction thereof may, upon request of either party, and prior to any determination as to whether it is appropriate to order the support and maintenance of one (1) party by the other, equitably divide, distribute or assign the marital properly between the parties without regard to marital fault in proportions as the court deems just. (b) For"
},
{
"docid": "19943952",
"title": "",
"text": "allocated proportionally between the husband and wife in accordance with their respective tax withholdings during the relevant year. See In re Kleinfeldt, 287 B.R. 291, 292 (10th Cir. BAP 2002); In re Edwards, 363 B.R. 55, 58-59 (Bankr.D.Conn.2007); In re Lock, 329 B.R. 856, 860 (Bankr.S.D.Ill.2005); In re Smith, 310 B.R. at 323; In re WDH Howell, LLC, 294 B.R. 613 (Bankr.D.N.J.2003); In re Lyall, 191 B.R. 78, 85 (E.D.Va.1996); In re Gleason, 193 B.R. 387, 389 (Bankr.D.N.H.1996). Similarly, other courts have allocated the joint tax refund proportionally in accordance with income produced, which is the approach proposed by the Trustee in this case. See In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985); In re Verill, 17 B.R. 652, 655 (Bankr.D.Md.1982); In re Kestner, 9 B.R. 334, 336 (Bankr.E.D.Va.1981); In re Colbert, 5 B.R. 646, 648-49 (Bankr.S.D.Ohio 1980). The minority approach, advocated by the Debtor, holds that joint tax refund should be allocated equally between the husband and wife without regard to tax withholdings or income produced. See In re Innis, 331 B.R. 784, 787 (Bankr.C.D.Ill.2005); In re Barrow, 306 B.R. 28 (Bankr.W.D.N.Y.2004); In re Aldrich, 250 B.R. 907 (Bankr.W.D.Tenn.2000); Bass v. Hall, 79 B.R. 653, 656 (W.D.Va.1987). The common ground between all three approaches is that the determination of property rights in the assets of a debtor’s estate is a matter of state law. Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 917-18, 59 L.Ed.2d 186 (1979). Debt- or argues that the Court should apply the minority approach set forth in In re Aldrich, 250 B.R. 907 (Bankr.W.D.Tenn.2000) and apply state domestic relations law to determine the allocation of the joint tax refund. Debtor asserts that under South Carolina domestic relations law, the non-filing spouse would receive at least 50% pursuant to the equitable distribution approach provided by S.C.Code. Ann. § 20-7-471. The Court is not convinced that South Carolina domestic relations law applies in this case to determine the interests of Debtor and his non-filing spouse in the tax refund. The statutes providing for equitable distribution of the assets are applicable only when the parties are"
}
] |
552678 | parting with the bankrupt’s properly for the benefit of the creditor, and the consequent diminution of the bankrupt’s estate.” N. Y. County Nat. Bank v. Massey, 192 U. S. 138, 147, 24 S. Ct. 199, 201, 48 L. Ed. 380. “Unless the creditor takes by virtue of a disposition by the insolvent debtor of his property for the creditor’s benefit, so that the estate of the debtor is thereby diminished, the creditor cannot be charged with receiving a preference by transfer.” National Bank of Newport, N. Y., v. Nat. Herkimer County Bank of Little Falls, 225 U. S. 178, 184, 32 S. Ct. 633, 635, 56 L. Ed. 1042. See, also, REDACTED 443, 33 S. Ct. 829, 57 L. Ed. 1268; Bailey v. Baker Ice Machine Co., 239 U. S. 268, 274, 36 S. Ct. 50, 60 L. Ed. 275; Fourth Nat. Bank of Wichita, Hans., v. Smith (C. C. A. 8) 240 F. 19, 25; Miller v. Fisk Tire Co. (D. C.) 11 F.(2d) 301, 304. The disposal of the money and its separation from the estate of the debtor thus took place on February 6, 1931, as found by the court below. With Reference to the Question of Insolvency on February 6, 1931. The debtor was insolvent when adjudicated a bankrupt on February 26, 1931. There was evidence to the effect that no substantial change in his financial condition had taken place | [
{
"docid": "22201961",
"title": "",
"text": "the bankrupt’s property for the benefit of the creditor and a consequent diminution of the bankrupt’s estate. New York County National Bank v. Massey, 192 U. S. 138, 147; Newport Bank v. Herkimer Bank, 225 U. S. 178, 184. Much discussion appears in the briefs of counsel as to whether the deposits evidenced by the margin certificates were general deposits, creating between the Bank and the dépositor the relation of debtor and; creditor, or were special deposits which the Bank had no authority to mingle with its general funds. We do not deem it necessary to enter into a discussion of this question, with a view to determining the technical question as to the nature of the relation thus created between the Bank and the depositor. In cases of this character it is essential to learn just what has taken place between the parties, with a view to ascertaining whether a preferential transfer of property to a creditor has resulted. The statement of facts already made shows that these certificates were payable to Prince, unless they were required to be paid to the party holding them as security for Prince’s dealings upon the Board of Trade. It is further evident from the facts stated that without the coSperation of Anderson & Company, who took the place of Prince upon the Board of Trade, substituted their securities for those of Prince and carried out his obligations, the certificates would have had no value to the estate. By the arrangement made, Anderson & Company took hold of the situation, and, carrying out the deals upon which Prince was bound, cleared the certificates of any obligation to others, and they thereby be came payable to Prince. What was done did not in fact diminish the estate of Prince otherwise available to the creditors in the bankruptcy administration, for the traders holding them would have had the benefit of the deposits under the terms,of the certificates and the rules of the Board of Trade. It therefore appears that this essential element of a preferential transfer within the meaning of the Bankruptcy Act, diminution of"
}
] | [
{
"docid": "23409151",
"title": "",
"text": "estate was constructively in the custody of the law. Acme Co. v. Beekman Co., 222 U. S. 300, 32 Sup. Ct. 96, 56 L. Ed. 208. Upon the adjudication of bankruptcy, the District Court acquired jurisdiction essentially exclusive to administer the estate of the bankrupts generally, including the determination of claims to or liens upon their property, as well as questions of disbursement and distribution generally. In re Watts & Sachs, 190 U. S. 1, 27, 23 Sup. Ct. 718, 724 (47 L. Ed. 933); U. S. Fidelity Co. v. Bray, 225 U. S. 205, 217, 32 Sup. Ct. 620, 56 L. Ed. 1055; In re Martin (C. C. A. 6) 193 Fed. 841, 846, 113 C. C. A. 627. The property so subject to its jurisdiction included that in its constructive as well as in its actual possession (Orinoco Co. v. Metzel [C. C. A. 6] 230 Fed. 40, 144 C. C. A. 338); and upon the adjudication of bankruptcy the trustee’s title to the property and funds of the bankrupt related back to the time of filing the petition for bankruptcy adjudication (Everett v. Judson, 228 U. S. 474, 478, 33 Sup. Ct. 568, 57 L. Ed. 927, 46 L. R. A. (N. S.) 154; Bailey v. Baker Co., 239 U. S. 268, 275; 276, 36 Sup. Ct. 50, 60 L. Ed. 275; Toof v. Bank [C. C. A. 6] 206 Fed. 250, 251, 124 C. C. A. 118. This exclusive jurisdiction the bankruptcy court was not at liberty to surrender (Fidelity Co. v. Bray, supra, 225 U. S. at page 218, 32 Sup. Ct. 620, 56 L. Ed. 1055); and after bankruptcy supervened the state court (broadly speaking) no longer had power, unless under circumstances of emergency not applicable to the order here, to so dispose of the bankrupts’ estate, in whole or in part, as to deprive the bankruptcy court of power to determine finally the propriety of such disposition. Assuming that the action of the state court in respect to allowances to its receiver was presumptively correct and just, and that the bankruptcy court will"
},
{
"docid": "13501235",
"title": "",
"text": "and (b) whether the ■bank’s appropriation of that balance, hidden in the account of the corporation, with knowledge of Baseman’s insolvency, effected a preference and a corresponding depletion of the bankrupt’s estate, depends upon whether or not the rule of New York County National Bank v. Massey, 192 U. S. 138, 24 S. Ct. 199, 48 L. Ed. 380, applies. That decision holds that the balance of a regular bank account at the time of filing the petition is a debt due to the bankrupt from the bank, and in the absence of fraud or collusion between the bank and the bankrupt with the view, of creating a preferential transfer, the bank need not surrender such balance, but may set it off against notes of the bankrupt held by it. The theory of this decision is that a deposit of money to one’s credit in a bank does not operate to diminish the estate of the depositor, for where he parts with the money he creates at the same time, on the part of the bank, an obligation to pay the amount of the deposit as soon as the depositor may see fit to draw a check , against it, and that on this relation of debtor and creditor the bank may set off its debt to the depositor against the debt of the depositor to the bank and a preference is not thereby effected, although in such ease a bank creditor may have an advantage arising out of that relation greater than other creditors of the bankrupt who have no such relation. The learned trial judge thought, and we think, that the rule of New York County Nat. Bank v. Massey does not apply in this case for the two reasons he gave: “In the first place, the vital thing upon which that decision depends is missing here. The deposit of Baseman’s money in the corporation account did not create an obligation on the part of the bank to pay the amount of the deposit upon Baseman’s cheeks. This is true although it is agreed that the money was"
},
{
"docid": "21620144",
"title": "",
"text": "proceeds into the ward’s estate, had no right, title, or interest in the real estate or its proceeds, and no creditor had acquired rights therein by attachment or otherwise to which the trustee could succeed. Mass. Trust Co. v. MacPherson (C. C. A.) 1 F.(2d) 769, 771; In re Snelling (D. C.) 202 F. 259; same ease on appeal Clark v. Snelling (C. C. A.) 205 F. 240; Bailey v. Baker Ice Machine Co., 239 U. S. 268, 36 S. Ct. 50, 60 L. Ed. 275; Fairbanks v. Wills, 240 U. S. 642, 36 S. Ct. 466, 60 L. Ed. 841; Martin v. Commercial Nat. Bank, 245 U. S. 513, 38 S. Ct. 176, 62 L. Ed. 441; 4 Remington on Bankruptcy, pp. 271, 272, 284, 286, 296, 303. The transfer of the insurance policy, payable to tbe wife, to secure the repayment of the $1,000 borrowed from a friend, the policy having no cash surrender value then or afterwards, was not a preference. It in no way reduced the assets of the bankrupt’s estate available to creditors. In re Simmons & Griffin (C. C. A.) 255 F. 521; Remington on Bankruptcy, §§ 1243, 1247, 1653. Neither do we regard the payment into the ward’s estate of the $1,000 borrowed on the policy as creating a preference. The money was borrowed on the understanding that it was to be used to repay the ward’s estate; it was on this understanding that the wife transferred her interest in the policy to secure the loan, and which made the loan possible. The bankrupt could not lawfully use the money for any other purpose and he never attempted to. It did not increase his assets available to creditors generally. The transaction, though different in form, was in substance and effect the same as though the friend had paid the $1,000 directly into the ward’s estate. It is not claimed, if the transaction had taken this form, that the payment would have been a preference. The decree of the District Court is affirmed, with costs to the appellee Packer, guardian."
},
{
"docid": "4371401",
"title": "",
"text": "some $53,000, leaving the balance of $48,877.-74 now in dispute. The only suggestion that the bankrupt’s right of withdrawal was restricted in any way is to be found in the provision made for countersignature. The minutes of a meeting of the board of directors of the bankrupt held on April 22 state that “the banks had requested that in the future all checks drawn against the funds of the company * * * be countersigned by a representative designated by S. D. Leidesdorfl! & Co.” A resolution was adopted accordingly naming Mr. Fisher as the designated representative. On and after April 22 all cheeks were subject to countersignature by him. The evidence as to the manner in which this privilege was exercised shows merely that withdrawals were thereby limited to the payment of legitimate corporate obligations. There is no proof that any restriction was placed upon payments to creditors other than the banks. While it is true that Miller testified that Fisher sought the advice of Mr. Evarts, counsel for the banks, as to “each and every cheek,” this was not corroborated by Fisher and was expressly denied by Evarts. In view of this conflict, we must of course accept the finding of the court below that Mr. Evarts gave the correct version. The foregoing summary of the evidence is sufficient to show that the court’s finding that the bankrupt’s deposits were not made with a view to their use as a set-off cannot be reversed by us. It fallows without more that the trustees cannot succeed on their first cause of action. See N. Y. County Nat. Bank v. Massey, 192 U. S. 138, 24 S. Ct. 199, 48 L. Ed. 380; Continental & Commercial Trust & Sav. Bank v. Chicago Title & Trust Co., 229 U. S. 435, 33 S. Ct. 829, 57 L. Ed. 1268; Ingram v. Bank, 29 F.(2d) 86 (C. C. A. 9); Citizens’ Nat. Bank v. Lineberger, 45 F.(2d) 522 (C. C. A. 4). The preference count must fail also for lack of proof of the defendant’s knowledge of insolvency. It is true that"
},
{
"docid": "23409152",
"title": "",
"text": "the time of filing the petition for bankruptcy adjudication (Everett v. Judson, 228 U. S. 474, 478, 33 Sup. Ct. 568, 57 L. Ed. 927, 46 L. R. A. (N. S.) 154; Bailey v. Baker Co., 239 U. S. 268, 275; 276, 36 Sup. Ct. 50, 60 L. Ed. 275; Toof v. Bank [C. C. A. 6] 206 Fed. 250, 251, 124 C. C. A. 118. This exclusive jurisdiction the bankruptcy court was not at liberty to surrender (Fidelity Co. v. Bray, supra, 225 U. S. at page 218, 32 Sup. Ct. 620, 56 L. Ed. 1055); and after bankruptcy supervened the state court (broadly speaking) no longer had power, unless under circumstances of emergency not applicable to the order here, to so dispose of the bankrupts’ estate, in whole or in part, as to deprive the bankruptcy court of power to determine finally the propriety of such disposition. Assuming that the action of the state court in respect to allowances to its receiver was presumptively correct and just, and that the bankruptcy court will give due weight to this presumption, yet the ultimate determination of that question must, under the facts of this case, rest with the court of bankruptcy, taking into account equitable considerations and the extent to which the bankrupt estate has been benefited by the services and disbursements of the state court receiver. In re Watts & Sachs, supra; In re Zier & Co. (C. C. A. 7) 142 Fed. 102, 103, 73 C. C. A. 326; Hume v. Myers (C. C. A. 4) 242 Fed. 827, 830, 831, 155 C. C. A. 415; In re Neuburger (C. C. A. 2) 240 Fed. 947, 153 C. C. A. 633. Any other rule would, pro tanto, take the ultimate distribution of the assets of the bankrupt estate out of the hands of the bankruptcy court. We have no occasion to consider what the effect would have been had the state court fixed its receiver’s compensation and allowances for merely the 18 days prior to bankruptcy. No action thus limited was had or asked, and the superior court,"
},
{
"docid": "6029596",
"title": "",
"text": "it was adjudged a bankrupt, and the trustee brought this suit against the bank to recover as an unlawful preference the three amounts that the bank received. The cheeking balance, which was first applied to the indebtedness, must be treated separately from the two later applications. This balance was accumulated in the bank in the usual course of business and was not built up or deposited for the purpose of giving a preference to the bank. At the time it was applied to the indebtedness of the milling company that company was insolvent. We have no doubt of. the right of the bank to make the application upon that basis. New York County National Bank v. Massey, 192 U. S. 138, 24 S. Ct. 199, 48 L. Ed. 380; Studley v. Boylston National Bank of Boston, 229 U. S. 523, 33 S. Ct. 806, 57 L. Ed. 1313; Fourth Nat. Bank of Wichita, Kan., v. Smith (C. C. A.) 240 F. 19. And it was immaterial to the existence of this right that the debts were not due, as under section 68a of the Bankruptcy Act (11 USCA § 108(a) the right of set-off is preserved as to provable debts, whether due or not. Germania Sav. Bank Trust Co. v. Loeb (6 C. C. A.) 188 F. 285. The other two sums were paid in after the hank account had been closed by the application of the balance existing on the morning of April 26th. They were not accepted by appellee for deposit, but were taken by it — regardless of the purpose of the bankrupt — with the intention of applying them to the indebtedness of the bankrupt. A bank cannot accept funds offered for deposit, and claim the rights attaching to them as such, when they were in fact accepted for and were immediately applied to a wholly different purpose. Under such circumstances they take on the characteristics of the thing for which they were used. As to those two items, therefore, the trustee should have recovered. The decree is reversed, and the cause remanded for a new"
},
{
"docid": "7859095",
"title": "",
"text": "general creditors, the payment is in no event preferential. Continental & Commercial Trust & Savings Bank v. Chicago T. & T. Co., 229 U. S. 435, 33 S. Ct. 829, 57 L. Ed. 1268; Nat. Bank of Newport v. Nat. Herkimer County Bank, 225 U. S. 178, 32 S. Ct. 633, 635, 56 L. Ed. 1042; Citizens’ Nat. Bank v. Lineberger (C. C. A.) 45 F.(2d) 522, and the eases there cited on page 526. It is likewise well settled-by the authorities that) where a surety supplies out of his own funds the means for payment'of an obligation whereon he is surety, the estate of Ms-principal debtor is not thereby depleted, and, in such ease, it is of no consequence to the creditor who is thus paid what arrangement the debtor has* or makes with the surety for-reimbursement of the latter. In Citizens’ Nat. Bank v. Lineberger,' supra, the indorser took up the note of his principal (the bankrupt) with funds which the indorser borrowed from the bank that held the note, depositing the proceeds in the bank to the credit of the bankrupt, whieh gave its cheek to the bank in payment of the note. It was held that the payment to the-bank, although directly made by check of the-bankrupt, was not preferential. In Mason v. National Herkimer County Bank (C. C. A.) 172 F. 529, 532. (the same case as was decided by the Supreme Court-under the name of National Bank of Newport v. National Herkimer County Bank, supra), the court said: “The note wMeh was paid was apparently well secured by the indorser’s collateral. There was no reason why it should not have been paid in full. The-bank received no more than it was entitled to-without looking to the bankrupt’s property at all.” In Olmstead v. Massachusetts Trust Co., 11 F.(2d) 410, 411 (D. C.), it appears the action was to recover from the bank, as a preference, payment made to- it by Battey, a solvent partner, who had guaranteed to the bank 'a debt of an insolvent partnership of whieh he was a member, taking unto"
},
{
"docid": "11571738",
"title": "",
"text": "c. 59). He maintains that the trustee in bankruptcy cannot, under the circumstances of this case, maintain an action under the New York act. We see no reason lor considering that act at all. In this case the facts come within the provisions of Bankr. Act, § 60 (Comp. St. 1913, § 9644), and the trustee is not under the necessity of relying upon section 67e (section 9651), which enables a trustee to reclaim transfers made by a bankrupt when the transfers are null and void as against creditors “by the laws of the state, territory, or district in which such property is situate.” I. That a “transfer” of the property of the debtor was made is certain. That several transfers were made to Alexander, and through him to defendant, is not denied. It is not essential that the transfers should have been made directly to defendant. Any method of depleting an insolvent fund is sufficient. See Remington on Bankruptcy, § 1300. As stated in National Bank of Newport v. National Herkimer County Bank, 225 U. S. 178, 184, 32 Sup. Ct. 633, 635 (56 L. Ed. 1042) (1912); “To constitute a preference, it is not necessary that the transfer be made directly to the creditor. It may be made to another, for his benefit. If the bankrupt has made a transfer of his property, the effect of which is to enable one of his creditors to obtain a greater percentage of his debt than another creditor of the same class, circuity of arrangement will not avail to save it.” And in the same case the court, speaking through Mr. Justice Hughes, said: “The ‘accounts receivable’ of the debtor—that is, the amounts owing to him oil open account—are, of course, as susceptible of preferential disposition as other property; and if an insolvent debtor arranges to pay a favored creditor through the disposition of suc-h an account, to the depletion of his estate, it must be regarded as equally a preference, whether he procures the payment to be made on his behalf by the debtor in the account, the same to"
},
{
"docid": "336674",
"title": "",
"text": "by the trustee is found in section 57g of the Bankruptcy Act (Comp. St. § 9641), which provides, in substance, that the claims of creditors who have received preferences voidable under section 60, subd. “b” (section 9644), shall not be allowed unless such.creditor shall surrender such preference. Section 60, subd. “b,” makes voidable a transfer of property by a bankrupt within four months before the filing of a petition in bankruptcy, if at the time of the transfer the bankrupt be insolvent, the transfer then operate as a preference, and the person receiving it, or his agent acting therein, shall then have reasonable cause to believe that such transfer would effect a preference. Accounts receivable are property, and as susceptible of preferential disposition as other property. Newport Bank v. Herkimer Bank, 225 U. S. 178, 184, 32 Sup. Ct. 633, 56 L. Ed. 1042. The transfer was made within four months before the filing of the petition in bankruptcy. The Star Company was insolvent on the 19th of April, 1911. This is settled by the order of adjudication upon a petition filed on that day. The transfer of the book accounts to the bank was consummated about 6 o’clock in .the afternoon of the preceding day. While we arc not forgetful of the general rule that no presumption of insolvency at a date prior to that, of filing the petition in bankruptcy arises from the adjudication (In re Rome Planing Mill [D. C.] 96 Fed. 812), yet we think reason demands, and that this rule does not, when insolvency is shown on one day, forbid, in the absence of countervailing evidence, a presumption that such condition existed at the close of the preceding day. No evidence having been offered in this case to rebut that presumption, we must find, as did the referee and the District Court, that the Star Company was insolvent at the time of the assignment of its accounts receivable to the bank. The assignment of the accounts receivable operated as a preference, if thereby the estate of the Star Company was depleted (Newport Bank v. Herkimer"
},
{
"docid": "3032532",
"title": "",
"text": "look for payment of their debts, no preference has taken place. Continental & Commercial Trusj; & Savings Bank v. Chicago Title & Trust Co., 229 U. S. 435, 33 S. Ct. 829, 57 L. Ed. 1268; N. Y. County Bank v. Massey, 192 U. S. 138, 24 S. Ct. 199, 48 L. Ed. 380; Nat’l Bank of Newport v. Nat’l Herkimer County Bank, 225 U. S. 178, 32 S. Ct. 633, 56 L. Ed. 1042. At bar there is no depletion of the bankrupt’s estate; the payments were made in connection with a series of transactions involving an extended credit, and the net result as above stated did not operate to decrease the obligation of the debtor as existing on the date of insolvency. It is unjust to hold that, because the appellee has in the ordinary course of business during the four months preceding bankruptcy received payments which, under similar circumstances, might operate as a preference in some views of the law, it will bar the proof of this claim when, looking at all the transactions together, they demonstrate they were without any intention to acquire or to give any unjust preferences, and particularly where they have increased the net indebtedness to the creditor and effected a corresponding increase of the bankrupt’s estate. In re Dickson, 111 F. 726 (C. C. A. 1). In order to avoid such an unreasonable result, it is proper -to hold that all the transactions covered by this account will be regarded as one, so that it may not be held that the effect of any of the payments was to enable the appellee to obtain a greater percentage of its debt than any other creditor of the same class, within the meaning of the Bankruptcy Act, or that it is a preference within the meaning of section 15 of the Stock Corporation Law. Jos. Wild & Co. v. Provident Life & Trust Co., 214 U. S. 292, 29 S. Ct. 619, 53 L. Ed. 1003; Jaquith v. Alden, 189 U. S. 78, 23 S. Ct. 649, 47 L. Ed. 717; C. S. Morey"
},
{
"docid": "3032531",
"title": "",
"text": "from paying or securing a debt of the corporation. Gordon v. Southghte Building Co., 109 App. Div. 838, 96 N. Y. S. 717. The Bankruptcy Act defines a preference as a transfer by an insolvent, the effect of which will be to “enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class.” Section 60a (11 USCA 96(a). The Stoek Corporation Law refers to a “preference to any particular creditor over other creditors of the corporation.” In order to constitute a transfer prohibited by section 15 of the Stoek Corporation Law as a preference, there must be an actual depletion of the estate. The same holds true to constitute a preference in the estate.of a bankrupt. The purpose of the state act is directed primarily to the conservation of the estate of the insolvent for the benefit of its creditors, and, where a transfer has not resulted in a reduction or depletion of these assets to which the creditors are entitled to look for payment of their debts, no preference has taken place. Continental & Commercial Trusj; & Savings Bank v. Chicago Title & Trust Co., 229 U. S. 435, 33 S. Ct. 829, 57 L. Ed. 1268; N. Y. County Bank v. Massey, 192 U. S. 138, 24 S. Ct. 199, 48 L. Ed. 380; Nat’l Bank of Newport v. Nat’l Herkimer County Bank, 225 U. S. 178, 32 S. Ct. 633, 56 L. Ed. 1042. At bar there is no depletion of the bankrupt’s estate; the payments were made in connection with a series of transactions involving an extended credit, and the net result as above stated did not operate to decrease the obligation of the debtor as existing on the date of insolvency. It is unjust to hold that, because the appellee has in the ordinary course of business during the four months preceding bankruptcy received payments which, under similar circumstances, might operate as a preference in some views of the law, it will bar the proof of this claim when, looking at all"
},
{
"docid": "13324083",
"title": "",
"text": "$30,000' which he had obtained from the Mount Vernon Trust Company and to leave a book balance due from him to the bankrupt of $91,191.50. So far as appears, the defendant knew nothing of these entries in the Sparler account on the bankrupt’s books. On the trial, it was conceded that the portion of the payment of the notes which came from the balance of the bankrupt’s cheeking account in the defendant bank could not be recovered. The court entered judgment for the plaintiff for $19,000 and denied recovery of the remaining $30,000 on the ground that the bankrupt’s assets had not been depleted by that portion of the payment since Sparler, and not the bankrupt, had provided that part of the payment. It is well settled that unless an insolvent debtor so disposes of his property for the benefit of a creditor that the estate of the debtor, which would otherwise be available to meet the claims of all creditors, is diminished, the creditor cannot be charged with receiving a preference. Western Tie & Timber Co. v. Brown, 196 U. S. 502, 509, 25 S. Ct. 339, 49 L. Ed. 571, 574; National Bank of Newport v. National Herkimer County Bank, 225 U. S. 178, 32 S. Ct. 633, 56 L. Ed. 1042; New York County National Bank v. Massey, 192 U. S. 138, 147, 24 S. Ct. 199, 48 L. Ed. 380, 384. When the cashier’s cheek for $49,000 was indorsed by Sparler individually and by the bankrupt by him as its treasurer and delivered to the defendant, the payment so made had in it only $19,000 of what had previously been the bankrupt’s money. It is claimed that the bankrupt’s indorsement should be taken to show that Sparler as an individual first used the check to pay the bankrupt the $49,000 on account of his indebtedness to it and then as the treasurer of the bankrupt used it to pay the balance due the defendant on the notes. This seems to be a very unreal way of looking at the transaction, though it must be confessed that"
},
{
"docid": "22350571",
"title": "",
"text": "his behalf by the debtor in the account — the same to constitute a payment in whole or part of the latter’s debt — or he collects the amount and pays' it over to his creditor directly. This implies that, in the former case, the debtor in the account,, for the purpose of the preferential payment, is acting as the representative of the insolvent and is simply complying with the directions of the latter in paying the money to his creditor.. But; unless-the creditor takes by virtue of a disposition by the insolvent debtor of his property for the creditor’s benefit, so that the estate of the debtor is thereby dim-, inished, the creditor cannot be charged with receiving a preference by .transfer. Western Tie & Timber Company v. Brown, 196 U. S. 502, 509; Rector v. City Deposit Bank, 200 U. S. 405, 419. “These transfers of property, amounting to preferences, contemplate the parting with the bankrupt’s property for the benefit of the creditor and the consequent diminution of the bankrupt’s estate.” N. Y. County Bank v. Massey, 192. U. S. 138, 147. Here, the payment to the bank did. not proceed from the bankrupt, the Newport Knitting Company. The Titus Sheard Company had a standing quite apart from its relation to the Newport Knitting Company as a debtor in the account. In the transaction with the bank, the Titus Sheard Company acted on its own behalf. As the' holder of the original note, that company had endorsed it to the bank, taking for its own benefit the proceeds of the discount. Its obligation as endorser was continued by the renewals, and to secure the bank? on the last renewal it had deposited its own collateral. It took up the note with its own funds and.reeeived back the security. Neither directly nor indirectly was this payment to the bank made by the Newport Knitting Company, and the property of that company was not thereby depleted. .The fact then is not, as, it is contended, that “the bankrupt parted with property to the amount of the note and the bank"
},
{
"docid": "21620143",
"title": "",
"text": "ward’s estate therein arose at the time the agreement was made, the payment and receipt of the proceeds in part satisfaction of the loan did not constitute an unlawful preference or transfer, though made within four months of the filing of the.petition. It was not an agreement or promise to give security in the future, but was for a present right, and by the payment and receipt of the proceeds, before the filing of tbe petition, the ward’s estate acquired the legal title thereto. Mass. Trust Co. v. MacPherson (C. C. A.) 1 F.(2d) 769, 771, 772; Petition of Post (C. C. A.) 17 F.(2d) 555.. The trustee acquired no rights in the real estate or its proceeds by virtue of section 47a, cl. 2, of the Bankruptcy Act of 1898, as amended in 1910 (11 USCA § 75); for such rights as are conferred upon him by that section arise as of the date of the filing of the petition. At that time the bankrupt, having previously sold the real estate and paid the proceeds into the ward’s estate, had no right, title, or interest in the real estate or its proceeds, and no creditor had acquired rights therein by attachment or otherwise to which the trustee could succeed. Mass. Trust Co. v. MacPherson (C. C. A.) 1 F.(2d) 769, 771; In re Snelling (D. C.) 202 F. 259; same ease on appeal Clark v. Snelling (C. C. A.) 205 F. 240; Bailey v. Baker Ice Machine Co., 239 U. S. 268, 36 S. Ct. 50, 60 L. Ed. 275; Fairbanks v. Wills, 240 U. S. 642, 36 S. Ct. 466, 60 L. Ed. 841; Martin v. Commercial Nat. Bank, 245 U. S. 513, 38 S. Ct. 176, 62 L. Ed. 441; 4 Remington on Bankruptcy, pp. 271, 272, 284, 286, 296, 303. The transfer of the insurance policy, payable to tbe wife, to secure the repayment of the $1,000 borrowed from a friend, the policy having no cash surrender value then or afterwards, was not a preference. It in no way reduced the assets of the bankrupt’s estate"
},
{
"docid": "487581",
"title": "",
"text": "of the property, before bankruptcy, will render it valid as against the trustee in bankruptcy, and will not be held to be the obtaining of a preference. Finance & Guaranty Co. v. Oppenhimer, 276 U. S. 10, 48 S. Ct. 209, 72 L. Ed. 443; Bailey v. Baker Ice Machine Co., 239 U. S. 268, 36 S. Ct. 50, 60 L. Ed. 275; Humphrey v. Tatman, 198 U. S. 91, 25 S. Ct. 567, 49 L. Ed. 956; Thompson v. Fairbanks, 196 U. S. 516, 25 S. Ct. 306, 49 L. Ed. 577; Firestone Tire & Rubber Co. v. Cross (C. C. A. 4th) 17 F.(2d) 417. In the Oppenhimer Case, the Supreme Court said: “A party holding security does not create a preference by taking possession under it within four months if he lawfuHy may under the law of the state.” Upon the same principle, we think, a creditor of a national bank'holding a Hen upon securities does not create a preference within the meaning of the statute by taking them into his possession. It is, of course, the duty of the court, in a ease of insolvency, where reliance is placed upon an equitable Hen, to scrutinize the evidence with great care; but a careful examination of the record before us fails to disclose any evidence of fraud. On the contrary, counsel for the receiver concede that, at the time the agreement was made and the notes were segregated and set aside thereunder, there was no apprehension of insolvency. It appears, furthermore, that the county funds were deposited and later left with the bank upon the understanding that sufficient of its notes were to be assigned as security for same; and consequently the bank must be held to have received and retained general assets as a result of the agreement to pledge the notes in an amount equal to the Hen created upon the notes affeeted thereby. There is no showing that any creditor of the bank has been misled or could have been misled as to its financial condition by reason of the Hen created; and there"
},
{
"docid": "13728387",
"title": "",
"text": "February 10th, and during the transactions from that date up to and including February 15th. The bank had issued margin certificates to Prince, which evidenced indebtedness of the bank to Prince, and Prince had put these up as security for certain open trades. Prince, on February 14th, transferred these open trades to Anderson & Co. On February 15th, Anderson & Co., substituted its own securities in place of Prince’s margin certificates, thereby releasing the latter, which were thereupon returned to the bank, and by it set off against Prince’s indebtedness. On February 10th, the bank had called for payment of loans made to Prince. The money not being paid, the bank applied the sum of $3,095, then standing as a deposit credit on the books of the bank in favor of Prince. Thereafter deposits were made by Prince, and checks were drawn against the deposit until February 14th, when the bank applied the bal- anee of $575.79 on the-,general indebtedness of Prince to the bank. A petition in'bankruptcy was filed against Prince February 15th. The trustee in bankruptcy brought suit to recover, as being preferential transfers, first, the sum of $4,250, the amount of the margin certificates; and, secondly, the balance of $575.79, which had been applied by the bank against Prince’s general indebtedness on February 14th. The District Court held the trustee entitled to recover, and this was affirmed by the Circuit Court of Appeals, but was reversed by the Supreme Court, the latter court in its opinion using the following language : “To constitute a preferential transfer within the meaning of the Bankruptcy Act there must be a parting with the bankrupt’s property for the benefit of the creditor and a consequent diminution of the bankrupt’s estate. New York County National Bank v. Massey, 192 U. S. 138, 147 [24 Sup. Ct. 199, 48 L. Ed. 3801; Newport Bank v. Herkimer Bank, 225 U. S. 178, 184 [32 Sup. Ct. 633, 56 L. Ed. 1042]. * * * By the arrangement made, Anderson & Co. took hold of the situation, and, carrying out the deals upon which Prince"
},
{
"docid": "1833648",
"title": "",
"text": "therefor, it was not required to do so by the terms of the assignment. No certificates of deposit against this fund were ever issued; but at some time, either upon the adjudication of bankruptcy, or the appointment of a receiver, the Trust Company applied this $1,700 item on the note of the bankrupt dated July 7, 1932. That it was not then due is no ground of objection to this procedure, since, if not a preference, they were a proper set-off under sections 63 and 68 of the act (11 USCA §§ 103, 108); an adjudication in bankruptcy having taken place. New York County National Bank v. Massey, 192 U. S. 138, 24 S. Ct. 199, 48 L. Ed. 380; Studloy v. Boylston National Bank, 229 U. S. 523, 33 S. Ct. 806, 57 L. Ed. 1313; Fourth National Bank v. Smith, supra. This procedure by the Trust Company was also warranted by the terms of its collateral notes. The assignment of the accounts receivable in good faith as security for a present loan cannot be held to be a preference, even if made within four months of bankruptcy. The giving of a new note for an old matured note within four months of a petition in bankruptcy is not a preference, nor does the fact that it contained a provision that any collateral held by the payee, or any funds which came into its hands should be applied in payment, constitute a preference unless the debtor was insolvent, and the creditor had reasonable grounds to believe it would effect a preference. Sections 60a and 60b of the act (11 USCA § 96 (a,b); Peck & Co. v. Whitmer (C. C. A.) 231 F. 893; Essley Machinery Co. v. Belsley (C. C. A.) 235 F. 285. That the collateral notes were not given to prefer the Trust Company over other creditors, or that they were procured by the Trust Company for that purpose, is evidenced by the fact that up to August 15 the Trust Company permitted the bankrupt to collect the accounts receivable and retain 35 per cent, thereof,"
},
{
"docid": "13728388",
"title": "",
"text": "trustee in bankruptcy brought suit to recover, as being preferential transfers, first, the sum of $4,250, the amount of the margin certificates; and, secondly, the balance of $575.79, which had been applied by the bank against Prince’s general indebtedness on February 14th. The District Court held the trustee entitled to recover, and this was affirmed by the Circuit Court of Appeals, but was reversed by the Supreme Court, the latter court in its opinion using the following language : “To constitute a preferential transfer within the meaning of the Bankruptcy Act there must be a parting with the bankrupt’s property for the benefit of the creditor and a consequent diminution of the bankrupt’s estate. New York County National Bank v. Massey, 192 U. S. 138, 147 [24 Sup. Ct. 199, 48 L. Ed. 3801; Newport Bank v. Herkimer Bank, 225 U. S. 178, 184 [32 Sup. Ct. 633, 56 L. Ed. 1042]. * * * By the arrangement made, Anderson & Co. took hold of the situation, and, carrying out the deals upon which Prince was bound, cleared the certificates of any obligation to others, and they thereby became payable to Prince. What was done did not in fact diminish the estate of Prince otherwise available to the creditors in the bankruptcy administration, for the traders holding them would have had the benefit of the deposits under the terms of the certificates and the rules of the Board of Trade. It therefore appears that this essential element of a preferential transfer within the meaning the Bankruptcy Act, diminution of the bankrupt, estate, is wanting. The fact that what was done worked to the benefit of the creditor and in a sense gave him a preference is not enough, unless the estate of the bankrupt was thereby diminished.” In reference to the application of the deposit credit of $575.79, the court said: “As to the $575.79, we think the right to set off this deposit is established by the principles laid down in New York County National Bank v. Massey, supra. Here there was a deposit subject to be checked out"
},
{
"docid": "7859094",
"title": "",
"text": "with the giving of this note and mortgage? The evidence wholly fails to show that it even had knowledge of it. The mortgage did not in any way, or to any extent, inure to the bank’s benefit or advantage. Its transaction of receiving the $3,000, derived wholly from Bert’s property, to apply on the note whereon the solvent Bert was surety, in no wise affected the status of Adam’s property available for the payment of his general creditors. The mortgage transaction bore no relation to the $3,-000 payment. If and to the extent that it effected a preference, it surely was not a preference to the bank. The bank’s situation was not thereby improved, save only that it obtained cash in exchange for the liability of this solvent surety whose assets were the sole source of the payment—assets in whieh no other of Adam’s creditors had the remotest claim or interest. It is well settled that, where payment by an insolvent debtor to a creditor - does not diminish the debtor’s estate available! for his general creditors, the payment is in no event preferential. Continental & Commercial Trust & Savings Bank v. Chicago T. & T. Co., 229 U. S. 435, 33 S. Ct. 829, 57 L. Ed. 1268; Nat. Bank of Newport v. Nat. Herkimer County Bank, 225 U. S. 178, 32 S. Ct. 633, 635, 56 L. Ed. 1042; Citizens’ Nat. Bank v. Lineberger (C. C. A.) 45 F.(2d) 522, and the eases there cited on page 526. It is likewise well settled-by the authorities that) where a surety supplies out of his own funds the means for payment'of an obligation whereon he is surety, the estate of Ms-principal debtor is not thereby depleted, and, in such ease, it is of no consequence to the creditor who is thus paid what arrangement the debtor has* or makes with the surety for-reimbursement of the latter. In Citizens’ Nat. Bank v. Lineberger,' supra, the indorser took up the note of his principal (the bankrupt) with funds which the indorser borrowed from the bank that held the note, depositing the proceeds"
},
{
"docid": "4371402",
"title": "",
"text": "and every cheek,” this was not corroborated by Fisher and was expressly denied by Evarts. In view of this conflict, we must of course accept the finding of the court below that Mr. Evarts gave the correct version. The foregoing summary of the evidence is sufficient to show that the court’s finding that the bankrupt’s deposits were not made with a view to their use as a set-off cannot be reversed by us. It fallows without more that the trustees cannot succeed on their first cause of action. See N. Y. County Nat. Bank v. Massey, 192 U. S. 138, 24 S. Ct. 199, 48 L. Ed. 380; Continental & Commercial Trust & Sav. Bank v. Chicago Title & Trust Co., 229 U. S. 435, 33 S. Ct. 829, 57 L. Ed. 1268; Ingram v. Bank, 29 F.(2d) 86 (C. C. A. 9); Citizens’ Nat. Bank v. Lineberger, 45 F.(2d) 522 (C. C. A. 4). The preference count must fail also for lack of proof of the defendant’s knowledge of insolvency. It is true that Mr. Miller testified that about April 22 he told Mr. Connolly, president oL‘ the defendant, that the bankrupt was “hopelessly insolvent.” But Mr. Connolly ex pressly denied that any such statement was made to Mm. Again, we feel bound by the trial court’s acceptance of the defendant’s story. The report submitted on April 15th merely showed a substantial impairment of capital. That is, of course, quite different from a condition of insolvency. By joining in the banks’ request for an independent audit, the defendant did all it could reasonably be expected to do in the way of inquiry. Not until the audit was presented on the 24th did the defendant become aware of the bankrupt’s insolvency. The defendant was entitled under section 68 of the Bankruptcy Act (11 USCA § 108) to use as a set-off the balance of deposits made prior to that date. On the record before us the complainants can fare no better on their second cause of action. The evidence falls far short of proving that on April 15th the banks"
}
] |
146633 | property of a deceased member, none of which was pension money or derived from the government, that in order to foreclose the rights of heirs or next of kin within five years after the death of the member, it should have provided for the giving of notice of his death by publication and otherwise, so that the heirs or next of kin would at least have an opportunity to assert a claim of reclamation within the period of five years limited by the statute; and that in no event should they be deprived of their rights in the estate of the deceased member without notice and an opportunity to assert a claim. See Wilbur v. Tobey, 16 Pick. (Mass.) 177, 180; REDACTED 268, 269, 270, 275, 16 S.Ct. 585, 40 L.Ed. 691; Christianson v. King County, 239 U.S. 356, 36 S.Ct. 114, 60 L.Ed. 327. Here no notice was given or attempted to be given, and no knowledge of the death of the member was acquired until October 19, 1935, more than five years after his death on September 17, 1928, when a letter from the home giving such information was received by the defendant Stevens. But, independent of the fact that the act makes no provision for notice, the question arises, under what provision of the Constitution Congress acquired power to enact a law providing that, upon the death of a member, all of his personal property of the character here in question shall | [
{
"docid": "22970185",
"title": "",
"text": "record shall preclude all parties and privies thereto, their heirs and assigns.” By section 13 (3669), “ any party who shall have appeared to any proceeding, and the district attorney oñ behalf of the State, shall have the right to prosecute an appeal or writ of error upon such judgment.” Section 14 (3670) requires that “ the comptroller shall keep just accounts of all moneys paid into the treasury, and of all lands vested in the State, under the provisions of this act.” Sections 15 (3671) and 16 (3672) provide thatif any person appear,- after the death of the testator or intestate, and claim any money paid into the treasury under this act,” as heir, devisee or legatee, he may, by petition in the district court for the county in which the estate was sold, and after notice to the district attorney, and proof that the petitioner is an heir, devisee, legatee or legal representative, obtain an order directing the comptroller to issue his warrant on the ti’easurer for payment thereof. Section 17 (3673) simply relates to the. duty of the district attorney to obtain, from the clerk of any probate court moneys, or title papers to land, not claimed by any heir, devisee or legal representative of a deceased person. By section 18 (3674), “ all property, escheated under the provisions of this act, shall remain subject to the disposition of the State, as may hereafter be prescribed by law.” Sections 1770-1785 of the Revised Statutes of Texas of 1879 reenact, substantially and almost verbally, the provisions of the statute of 1848, except by requiring the publication of the' order of notice for eight weeks, instead of four weeks as in. section 4; by omitting sections 12 and 17; and by inserting the words “ The proceeds of” at'the beginning of section 18. These proceedings for the escheat of the estate of a deceased person for want of heirs or devisees, like ordinary proceedings for the administration of his estate, presuppose that he is dead; if he is still alive,.the court is without jurisdiction, and its proceedings are null"
}
] | [
{
"docid": "11973563",
"title": "",
"text": "VAN ORSDEL, Associate Justice. This appeal is from a final decree dismissing a bill for injunction to restrain the Secretary of the Interior from exercising authority or control over certain accumulated rents and royalties derived from a certain oil lease, inherited by appellant from a full-blood Indian allottee, in the state of Oklahoma, and for a mandatory order requiring the Secretary to release and turn over the funds to plaintiff or her guardian. It appears that prior to 1919 one Pottey, a full-blood Seminole Indian, roll No. 1447, received as his homestead allotment, under the Aet of May 27, 1908, 35 Stat. 312, 40 acres of land in Seminole county, Okl., which was duly patented to him. On June 18, 1923, with the consent and approval of the Secretary of the Interior, Pottey executed an oil and gas lease to the Creek Capital Oil Company for a term of ten years from November 25, 1919; or as much longer thereafter as oil and gas were found in paying quantities. Royalties accrued thereunder in the hands of the Secretary of the Interior to the approximate amount of $75,000. Pottey died December 1, 1926, intestate, leaving, as his heirs and next of kin, Nancy King, widow, Eliza Wolf, horn prior to March 4, 1906, a daughter of a former wife, since deceased, and David Stamp; born after March 4, 1906, a son of the said former wife. Upon the death of Pottey, the land did not descend to his heirs, but was subject to a proviso of section 9 of the act of Congress of April 12, 1926, 44 Stat. 239, as follows: “The death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allot-tee’s land: Provided, That hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Aet acquired by inheritance or deviso from an allottee of such lands shall he valid unless approved by the county court having jurisdiction of the settlement of the estate of the"
},
{
"docid": "11973564",
"title": "",
"text": "of the Secretary of the Interior to the approximate amount of $75,000. Pottey died December 1, 1926, intestate, leaving, as his heirs and next of kin, Nancy King, widow, Eliza Wolf, horn prior to March 4, 1906, a daughter of a former wife, since deceased, and David Stamp; born after March 4, 1906, a son of the said former wife. Upon the death of Pottey, the land did not descend to his heirs, but was subject to a proviso of section 9 of the act of Congress of April 12, 1926, 44 Stat. 239, as follows: “The death of any allottee of the Five Civilized Tribes shall operate to remove all restrictions upon the alienation of said allot-tee’s land: Provided, That hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Aet acquired by inheritance or deviso from an allottee of such lands shall he valid unless approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee or testator: Provided further, That if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March 4,1906, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior for the use and support of such issue, during their life or lives, until April 26,1931.” David Stamp died April 15, 1930, and the land descended to the remaining heirs of the original allottee, Nancy King and Eliza Wolf. Thereafter the two heirs, sold and conveyed all their interest in the land by deed duly approved by the county court of Seminole county, Okl., being the court having jurisdiction of the settlement of the estate of* the deceased allottee. Neither of the heira have now any interest in the land.. The present suit was brought by Nancy King, through her guardian, Hugh Barham, to recover her share of the moneys, rents, royalties, and profits derived from the land, and now in the possession"
},
{
"docid": "16343581",
"title": "",
"text": "and held by him at the time of the member’s death. But it contains nothing that relates to use or disposition of the fund while the pensioner is alive. It relates exclusively to disposition of the balance in the hands of the treasurer at the time of death. In that respect alone, it conflicts with and supersedes the corresponding provisions of the Act of 1881. The scope and effect of the Act of June 25, 1910, remain to be considered. It provides: “Hereafter the application of any person for membership in the National Home . . . and the admission of the applicant thereunder shall be and constitute a valid and binding contract between such applicant and the Board of Managers of said home that on the death of said applicant while a member . . . leaving no heirs at law nor next of kin, all personal property owned by said applicant at the time of his death, including money or choses in action held by him and not disposed of by will, whether such property be the proceeds of pensions or otherwise derived, shall vest in and become the property of said Board ... for the sole use and benefit of the post fund of said home . . . and that all personal property of said applicant shall, upon his death, while a member, at once pass to and vest in said Board . . . subject to be reclaimed by any legatee or person entitled to take the same by inheritance at any time within five years after the death of such member. . . .” Before that enactment, it was disclosed that in the National Home a substantial number of inmates died intestate and without heirs, leaving not only the balance of their pension money remaining in the hands of the branch treasurer but also money on deposit in banks. The Act directs the disposition of personal property left by members dying intestate and without heirs. Congress intended to vest in the board of managers for the post fund only that which, for lack of"
},
{
"docid": "15628905",
"title": "",
"text": "insurance without denying due process of law. In Scott v. McNeal, 154 U. S. 34, 14 S. Ct. 1108, 38 L. Ed. 896, administration was granted and property'sold of a person supposed to be dead who proved to be alive. The Supreme Court of the state held such proceedings to be in rem and conclusive against him, but the Supreme Court of the United States held them void. It was said, page 46 of 154 U. S., 14 S. Ct. 1108, 1112: “Even a judgment in proceedings strictly in rem binds only those who could have made themselves parties to the proceedings, and who had notice, either actually or by the thing condemned being first seized into the custody of the court.” And at page 49 of 154 U. S., 14 S. Ct. 1108, 1114: “As the jurisdiction to issue letters of administration upon his estate rests upon the fact of his death, so the notice given before issuing such letters assumes that fact, and is addressed not to him, but to those who after his death may be interested in his estate, as next of kin, legatees, creditors, or otherwise. Notice to them cannot be notice to him, because all their interests are adverse to his. The whole thing, so far as he is concerned, is res inter alios acta.” See, also, Thormann v. Frame, 176 U. S. 350, 20 S. Ct. 446, 44 L. Ed. 500, and eases cited. In Christianson v. King County, 239 U. S. 356, 36 S. Ct. 114, 60 L. Ed. 327, the subject-matter of the proceeding in the probate court was land within its jurisdiction, and the proceeding to escheat it cited all persons to appear. Finally, we suppose from the face of the judgment here offered, that the thing really decided by it was that according to the law of Texas Fennell was the brother and sole heir of Raymond and that nothing whatever was considered or adjudged concerning the law of Louisiana, for the judgment nowhere discloses that the deceased Raymond was at his death domiciled in Louisiana. It has no"
},
{
"docid": "15199765",
"title": "",
"text": "312, 315) it is provided: “That hereafter no conveyance by any full-blood Indian of the Five Civilized Tribes of any interest in lands restricted by section 1 of this Act acquired by inheritance or devise from an allottee of such lands shall be valid unless approved by the county court having jurisdiction of the settlement of the estate of the deceased allottee or testator.” (Italics mine.) Congress thus extended and made more comprehensive said act so as to protect the fiill-blood Indian in land acquired not only by inheritance but also by devise. In some instances through designing manipulation the full-blood allottee was induced by will to devise his allotment to his full-blood children or next of kin and to secure its approval by the proper federal agency and then after the death of such testator or testatrix and the' probating of the will restrictions thereon having ceased as to such inherited land, opportunity for its dissipation was afforded. By this provision such practice was circumvented and supervision of the government through its federal agency continued. The purpose of Act of May 10, 1928, was to extend the period of restrictions on lands of said members of the Five Civilized Tribes for an additional period of 25 years from and including April 26, 1931. Section 3 of said act relates not only to restricted allotted lands of members of the Five Civilized Tribes, but also to inherited restricted lands of full-blood Indian heirs or devisees of such land. Section 5 thereof declares that said act does not have the effect of reimposing restrictions theretofore or hereafter removed by the Secretary of the Interior or by operation of law, nor to exempt from taxation any lands which are subject to taxation under existing law, and shall not be so construed. Act of January 27, 1933, contains no such precautions or legislative declaration. Its context clearly indicates that it was the purpose of Congress to tighten up and extend restrictions for the protection of full-blood heirs and restricted Indians. It is not essential to determine whether Acts of May 27, 1908, April"
},
{
"docid": "16343582",
"title": "",
"text": "such property be the proceeds of pensions or otherwise derived, shall vest in and become the property of said Board ... for the sole use and benefit of the post fund of said home . . . and that all personal property of said applicant shall, upon his death, while a member, at once pass to and vest in said Board . . . subject to be reclaimed by any legatee or person entitled to take the same by inheritance at any time within five years after the death of such member. . . .” Before that enactment, it was disclosed that in the National Home a substantial number of inmates died intestate and without heirs, leaving not only the balance of their pension money remaining in the hands of the branch treasurer but also money on deposit in banks. The Act directs the disposition of personal property left by members dying intestate and without heirs. Congress intended to vest in the board of managers for the post fund only that which, for lack of testamentary disposition and heirs at law, would be liable to escheat to the State. Whether the Act extends to the balance of decedent’s pension money accumulated in the hands of the branch treasurer depends upon the meaning to be given to the words “all personal property owned by said applicant at the time of his death, including money or choses in action held by him and not disposed of by will, whether such property be the proceeds of pensions or otherwise derived.” The words “all personal property” are broad enough to include his beneficial interest in the trust fund created by payments of his pension to the treasurer. The words “including money or choses in action” obviously do not exclude that money. There is nothing to suggest that the phrase “whether such property be the proceeds of pensions or otherwise derived” was intended to eliminate the pension money. It indicates purpose to extend not to- restrict. Even if “proceeds of pensions” might be held to refer to something other than pension money, that meaning would"
},
{
"docid": "13929722",
"title": "",
"text": "in the event of the death during the continuance of the trust. Then it was provided that if they should fail to make such designation, the income should be paid “to the heirs of the party of the first part (the settlor) per stirpes, and not per capita, until the termination of this trust. In this connection, the word ‘heirs’ shall be construed to include those persons only who would be entitled to share in the distribution of personal estate under the laws of the State of New York at the time of such distribution.” The settlor attempted to revoke the trust, though he reserved no such power in the trust instrument. The two sons consented to the revocation, but the trustees maintained that the infant grandchildren and the great grandchildren of the settlor, issue of those who had consented, were minors and could give no consent. The court so held, and in the course of the opinion it is said: “Here those who are described as ‘heirs’ receive a contingent remainder created by the trust indenture. They take as purchasers through a beneficial right derived from the trust instrument, and all who have a share in that right and who may, by survival or other event, become members of the class entitled to the remainder, have a beneficial interest in the trust which cannot be destroyed without their consent. * * * Though here no grandchild of the settlor can in any contingency share in the income or corpus of the trust estate, unless before the termination of the trust his or her parent, who has already given written consent, dies, yet the grandchild, in case of the death of thei parent before the date at which the class is determined, which is to receive a contingent gift from the settlor, will take as purchaser and not as heir or next of kin either of the settlor or any other ancestor. * * * The beneficial interest of these grandchildren in the trust is as certain as that of the settlor’s children. None can enjoy any interest in the"
},
{
"docid": "10823665",
"title": "",
"text": "interest after the death of the allot-tee. Under the act, no creditor had a right to take over, by legal process, or have the lands, moneys, or mineral interests of a member of the Osage Tribe of Indians levied upon to satisfy any judgment for debt. See Neilson v. Alberty, 36 Okl. 490, 129 P. 847. The Act of April 18, 1912, conferred au thority upon the courts of Oklahoma to administer upon the estate of a member of the Osage Tribe of Indians, and jurisdiction was given to the county courts of the state of' Oklahoma in probate matters of Osage allottees, subject to limitations upon the manner in which such jurisdiction shall be exercised. The act (section 7) provided that the lands or funds of Osage tribal members shall not be subject to any claim against the same arising prior to the grant of the certificate of competency, and that no lands or moneys inherited from Osage allottees shall be subject to be taken or sold to secure the payment of any indebtedness incurred by such heir prior to the time such land and money was turned over to such heirs. Inherited moneys were made liable for funeral expenses, as well as expenses of last illness of the deceased Osage allottee, and it was further provided that nothing contained in the act should be construed so as to exempt any such property from liability for taxes. The act referred only to moneys that the deceased had at the time of his death or which were due him at that time. No provision was made for the payment of the indebtedness of the deceased allottee or any moneys that may come to his heirs, except the reference to the funeral expenses and expenses of last illness. It thus appears that the intent and purpose of the congressional acts is that the heirs of the deceased allottees shall take over the right to receive the subsequent quarterly payments after the allottee’s death that come from the mineral interests and the tribal property of tho deceased allottee’s. Reasons have been advanced"
},
{
"docid": "15628906",
"title": "",
"text": "his death may be interested in his estate, as next of kin, legatees, creditors, or otherwise. Notice to them cannot be notice to him, because all their interests are adverse to his. The whole thing, so far as he is concerned, is res inter alios acta.” See, also, Thormann v. Frame, 176 U. S. 350, 20 S. Ct. 446, 44 L. Ed. 500, and eases cited. In Christianson v. King County, 239 U. S. 356, 36 S. Ct. 114, 60 L. Ed. 327, the subject-matter of the proceeding in the probate court was land within its jurisdiction, and the proceeding to escheat it cited all persons to appear. Finally, we suppose from the face of the judgment here offered, that the thing really decided by it was that according to the law of Texas Fennell was the brother and sole heir of Raymond and that nothing whatever was considered or adjudged concerning the law of Louisiana, for the judgment nowhere discloses that the deceased Raymond was at his death domiciled in Louisiana. It has no force against the United States, either prima facie or conclusive, as an adjudication. Passing to the law of Louisiana, FenneE rests his claim to heirship on Civ. Code, art. 923: “If the father and mother of the natural child died before him, the estate of such natural child shaE pass to his natural brothers and sisters, or to their descendants.” By article 485, “The succession of persons whd die without heirs, or which are not claimed by those having a right to them, belong to the State.” Treating his unknown father as nonexistent, for half-blood relationship suffices under article 923, Fennell would have no difficulty if in Louisiana the term “natural brothers and sisters” meant as elsewhere kindred by nature but not by law, that is, illegitimates. His trouble arises from the definitions of axtiele 202: “Illegitimate children who have been acknowledged by their father are ealled natural children; those who1 have not been acknowledged by their father * * * or whose father is unknowñ, are contradistinguished by the appellation of bastards.” And article"
},
{
"docid": "5693940",
"title": "",
"text": "that the Secretary may remove such restrictions in whole or in part, under such rules and regulations as he may prescribe; and section 9, as amended by section 1 of the Act of April 12, 1926, supra, provides that the death of an allottee shall operate to remove all restrictions upon the alienation of such allottee’s land, provided that no conveyance by any full-blood Indian of such Tribes of any lands restricted by section 1 acquired by inheritance or devise from the allottee shall be valid unless approved by the county court having jurisdiction of the settlement of the estate of such deceased allottee or testator. And section 1 of the Act of January 27, 1933, 47 Stat. 777, provides that where the entire interest in any tract of restricted and tax-exempt land belonging to members of the Five Civilized Tribes is acquired by inheritance, devise, gift, or purchase with restricted funds, by or for restricted Indians, such land shall remain restricted and tax-exempt during the life of and as long as it is held by such Indians, but not longer than April 26, 1956. It is clear that under these acts, without more, the district courts in Oklahoma would be without jurisdiction to partition restricted and tax-exempt land acquired through inheritance by full-blood members of the Five Civilized Tribes. Coleman v. Battiest, 65 Okl. 71, 162 P. 786; Hoodenpyl v. Champion, 71 Okl. 270, 177 P. 369. But, recognizing the frequent need to partition land acquired in that manner, the Congress enacted the Act of June 14, 1918, 40 Stat. 606. Section 1 authorizes the probate court in Oklahoma having jurisdiction of the settlement of the estate of a deceased allottee, leaving restricted heirs, to determine the question of heirship; and section 2 provides that the lands of full-blood members of any of the Tribes are made subject to the laws of the state respecting the partition of real estate, and' that in case of a sale under a decree, or partition, the conveyance shall operate to relieve the land of all restrictions of every character. Under that statute"
},
{
"docid": "22328717",
"title": "",
"text": "probate of wills and the granting of administrations depend upon, the fact that a person is dead, and are null and void if he is alive. Their jurisdiction in this respect being limited to the estates of deceased persons, they have no jurisdiction whatever to administer and dispose of the estates of living persons of full age and sound mind, or to determine that a living man is dead and thereupon undertake to dispose of his estate. A cohrt of probate must, indeed, inquire into and be satisfied of -the fact of the death of the person whose will is. sought to be proved or whose estate is sought to be administered, because, without that fact, the court has no jurisdiction over his estate; and not because its decision upon the question whether he is living or dead can in anywise bind or estop him, or deprive him, while alive, of the title or control of his property. As the jurisdiction to issue letters of administration upon his estate rests upon the .fact of his death, so the notice given before issuing such letters, assumes that fact, and is addressed, not to him, but to those who after his death may be interested in his estate, as next of kin, legatees, creditors or otherwise. Notice to them cannot be notice to him, because all their interests are adverse to his. The whole thing, so far as he is concerned, is res inter alios aeta. Next of kin or legatees have no rights in the estate of a living person. His creditors indeed, may, upon proper proceedings, and due notice to him, in a court of law or of equity, have specific portions of his property applied in satisfaction of their debts. But neither creditors nor purchasers can acquire any rights in his property through the action of a court of probate, or of an administrator ¿ppointed by that court, dealing, without any notice to him, with his whole estate as if he were dead. The appointment by the probate court of an administrator of the estate of a living person,"
},
{
"docid": "228926",
"title": "",
"text": "within five years after the death of the deceased, there might be other “next of kin” entitled to take by succession under and by virtue of the above-cited section 5702 of the Idaho statute which provides that “If the decedent leave neither issue, husband, wife, father, mother, brother nor sister, the estate must go to the next of kin in equal degree,” etc. For such “next of kin,” whoever they might be, the administrator of the decedent’s estate continued trustee. Yet, while occupying that relation to the estate, and to whoever might be entitled to succeed to it under the law of Idaho, the uncontradicted evidence shows that the administrator went to Ireland in the spring of 1911, taking with him a Catholic priest, and on the 10th day of April of that year obtained from Bridget Madden, the half-sister of the deceased, in consideration of $2,500 paid to her, and $1,500 paid to her lawyers, a deed purporting to convey to him the entire estate of the deceased, which was appraised under his administration, as has been seen, at $21,356 in value, and which the evidence shows in truth greatly exceeded that amount. It is true that the appellants Celia Diamond and Bridget McGrail did not and could not, as we think and as did the court below, claim to derive any right under or through Bridget Madden, but only as next of kin of the deceased in the event she did not make claim to the estate as heir within the five-year period allowed by the Idaho statute for that purpose. But, most obviously, the administrator represented, as trustee, that contingent right in them precisely the same and to the same extent as he represented as trustee the right of Bridget Madden as heir; and the same principle of equity, in our opinion, forbade him from acquiring, or in any way defeating, the interest or right of either the heir or next of kin. The judgment is reversed, and the case remanded to the court below, for further proceedings in accordance with the views above expressed."
},
{
"docid": "23084973",
"title": "",
"text": "which section reads as follows : “Seo. 1. Upon due notice and satisfactory proof of the death of a member of this company, the.board of directors shall within sixty (60) days pay the widow, children or heirs of the deceased member, (and in the order named unless otherwise ordered by the member during his lifetime or in his will), the amount set forth in the deceased member’s policy of membership: Provided that a policy of membership for $5000 shall be good for all the money in the death fund arising from one assessment; provided, it shall not exceed $5000 and all the money paid on the policy in assessments y and a certificate for $1000 shall be good for four-fifths of all the money in the death fund arising from one assessment, provided it shall not-exceed $4000 and all the money paid on the policy in assessments ; and so on in the same proportion as to all certificates.” The assessments paid upon the policy amounted to $811.83, and the right of the plaintiff to recover this amount in addition to the principal sum of $5000 would be beyond question, were it not for certain changes thereafter made in.the constitution, which it is insisted were binding upon the plaintiff under the following clause, found in the application of Jarman for membership : “ I further agree, if accepted, to abide by the constitution, rules and regulations of the company, as they now are, or may be constitutionally changed hereafter.” The application further stated that the application was made a part of the policy by reference thereto. In virtue of the privilege thus given to amend its constitution the company, on January 8, 1889, amended art. IY, sec. 3, of the constitution so as to read as follows: “ Sec. 3. Policies of membership may be issued upon'a basis of benefits ranging in amounts to $5000, and all the money paid in assessments upon the policy for the first five years.” The proviso of art. YII, sec. 1, was also amended at the same 'time to correspond with the above amendment"
},
{
"docid": "23084972",
"title": "",
"text": "to the act of 1887, which rights had not been affected by anything done during the ten years between the two acts. Upon defendant’s theory, if the act of 1887 had been in existence but a single day the same result would have followed. Our conclusion, then, is that the court below was correct in holding that the suicide, statute, as originally applied' to this policy, had not been repealed at the death .of Jarman in 1898, when the cause of action arose. 3. It is also assigned as error in this case that the court permitted a recovery, not only of the amount of the policy, but of all the money paid by assured in assessments upon such policy. The promise of the company was to pay the plaintiff “ the sum of $5000, and all the money pañol on the policy in assessments, subject to the limitation as to the amount of such pay ment as is provided in seo. 1 of art. YII of the constitution on the back- of this, policy, which section reads as follows : “Seo. 1. Upon due notice and satisfactory proof of the death of a member of this company, the.board of directors shall within sixty (60) days pay the widow, children or heirs of the deceased member, (and in the order named unless otherwise ordered by the member during his lifetime or in his will), the amount set forth in the deceased member’s policy of membership: Provided that a policy of membership for $5000 shall be good for all the money in the death fund arising from one assessment; provided, it shall not exceed $5000 and all the money paid on the policy in assessments y and a certificate for $1000 shall be good for four-fifths of all the money in the death fund arising from one assessment, provided it shall not-exceed $4000 and all the money paid on the policy in assessments ; and so on in the same proportion as to all certificates.” The assessments paid upon the policy amounted to $811.83, and the right of the plaintiff to"
},
{
"docid": "1963070",
"title": "",
"text": "The decree of distribution confers no new right; it merely identifies the property remaining, evidences right of possession in the heirs or legatees and requires the administrators or executors to deliver it to them. The legal title so given relates back to the date of death, [citations omitted.] Petitioner’s right later to have his share of the residue vested immediately upon testator’s death. 280 U.S. at 334, 50 S.Ct. at 116 (emphasis added) The opinion of this Circuit in Brewster, which the Supreme Court affirmed, includes even more direct language in support of the estate’s argument. After noting that legal title to personalty vests in the personal representative of the deceased as of the date of his death, the opinion continued: But a legatee under a will acquires that to which he is entitled at the instant of the testator’s death. Brewster v. Gage, 30 F.2d 604, 605 (2nd Cir., 1929) (emphasis added) These Brewster opinions can be read to support the estate’s argument here, although the legal question actually involved in Brewster was the federal income tax law question of when stock received under a will is “acquired” for the purpose of computing gain or loss on the disposition of that stock. While this ease did not determine whether an “enti-tied to” clause creates a “terminable interest” in a New York will, it is indicative that equitable title, at least, vested as of the date of death. As was said in Cooper v. Cooper, L.R. 6 Ch. 53, cited in Blood v. Kane, supra, 130 N.Y. at 519, 29 N.E. 994: The rule of the Statute of Distributions, which requires the conversion of the intestate’s estate into money, is introduced simply for the benefit of creditors, and the facility of division among the next of kin. But, as regards the substantial title to property, the right of the next of kin (subject only to the claims of creditors) is complete, (emphasis added) In addition to this argument, however, the estate also presented extrinsic evidence to the Tax Court as to the origin of the “entitled to” clause. In the"
},
{
"docid": "14448012",
"title": "",
"text": "representatives of such deceased person, and if there be no personal representatives, then the same may be brought by the heirs at law of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and, in every such aetion, the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person. Provided, every such action shall be commenced within two [2] years after the death of such person.” Section 1 of Act 255 of 1957 (Ark. Stats., Section 27-906) is a substantial reenactment of Ark.Stats., Section 27-903; but certain changes were made in the provisions incorporated in Section 27-904. Significant for the purposes of this case were an extension of the period of limitations to three years, a provision making mental anguish a compensable element of damage, and a provision which calls for an apportionment of the award by court or jury, rather than in accordance with the laws of descent and distribution. It may be noted that both the original and the more recent death statutes contain their own built-in periods of limitations, and those prescribed periods must be regarded as more than merely procedural. They are parts of the substantive rights created by the statutes. Thus, in Smith v. Missouri Pacific Railroad Co., supra, the Court said (at page 627 of 175 Ark., at page 48 of 1 S.W.2d): “ * * * At common law, no cause of action for personal injury survived the death of the injured person, and therefore appellant’s right to maintain this action depends upon the statutes of this state, the injury and death having occurred in this state. In the case of Earnest v. St. Louis Memphis & S. E."
},
{
"docid": "11973565",
"title": "",
"text": "deceased allottee or testator: Provided further, That if any member of the Five Civilized Tribes of one-half or more Indian blood shall die leaving issue surviving, born since March 4,1906, the homestead of such deceased allottee shall remain inalienable, unless restrictions against alienation are removed therefrom by the Secretary of the Interior for the use and support of such issue, during their life or lives, until April 26,1931.” David Stamp died April 15, 1930, and the land descended to the remaining heirs of the original allottee, Nancy King and Eliza Wolf. Thereafter the two heirs, sold and conveyed all their interest in the land by deed duly approved by the county court of Seminole county, Okl., being the court having jurisdiction of the settlement of the estate of* the deceased allottee. Neither of the heira have now any interest in the land.. The present suit was brought by Nancy King, through her guardian, Hugh Barham, to recover her share of the moneys, rents, royalties, and profits derived from the land, and now in the possession of the defendant, the Secretary of the Interior, and retained by him subject to his control. Plaintiffs L. W. Cozart and Sampson B. Harjo, administrators of the estate of Pottey, were allowed to intervéne. The land in question was allotted under the Acts of March 1, 1901, 31 Stat. 861, and June 30, 1902, 32 Stat. 500, in both of which it was provided that the homestead of each allottee should be inalienable for twenty-one years, and on his death should remain for the use and support of his children, if any, born after the date which would entitle them to be enrolled and receive allotments of their own. By the act of April 26, 1906, 34 Stat. 137, this date was changed to March 4, 1906, and as to allotments to full-blood allottees the re-strietions on alienation were extended until April 26, 1931, or twenty-five years. By the act of May 10, as amended May 24, 1928, 45 Stat. 495, 733, the restriction period was extended twenty-five years to terminate April 26, 1956. It"
},
{
"docid": "21407944",
"title": "",
"text": "the United States. 3. On October 20, 1950, said Robert P. Campbell died intestate, while he was a patient receiving care and treatment from the Veterans Administration in the Veterans Administration hospital at Los Angeles, California. He left no surviving spouse, heirs or next-of-kin entitled to inherit his personal property under the laws of the State of California. 4. Said veteran had applied for admission, and was admitted, as a patient into said Veterans Administration facility on November 11, 1948; and from then until his death he was continuously furnished, and he received and accepted from the Veterans Administration, care and treatment as a patient in said facility. His application for admission was made in writing to the Veterans Administration; and printed upon and as a part of said -application was a notice to him from the Administrator of Veterans Affairs of the provisions of Title 38 U.S.C.A. §§ 17-17j. These sections in effect provide that upon the death of any veteran receiving care or treatment from the Veterans Administration in any of its facilities, leaving no widow, next-of-kin or heirs entitled to inherit the same, all his personal property, including money or balances in bank, and all claims and choses in action owned and not disposed of by him by will or otherwise, will become the property of the United States as trustee for the sole use and benefit of the General Post Fund. The care and treatment he received in said Administration facility was furnished him pursuant to the provisions of said notice upon the application and to the federal statute aforesaid. . 5. After his appointment as administrator of the deceased veteran’s estate, Ben H. Brown, the defendant, took into his possession the $1,235.63, aforesaid; and in due course of administration he has paid and satisfied therefrom all the debts of the estate, and all charges and expenses of administration; and now has in hand a residue thereof amounting to $857.94 in money, which would be available for distribution to any spouse, heir or next-of-kin if there were any such. 6. On October 26, 1951, the Veterans"
},
{
"docid": "21407943",
"title": "",
"text": "YANKWICH, 'Chief Judge. 1. Defendant Ben H. Brown resides in and is the Public Administrator of Los Angeles County, California; and is the duly appointed, qualified and acting administra tor of the estate of Robert P. Campbell, deceased, under letters of administration issued to him December 15, 1950, by the Superior Court of the State of -California in and for the said County in Probate Proceeding No. 312232, in which court and proceeding said decedent’s estate is being administered. 2. The said Robert P. Campbell during his life was a veteran of the armed forces of the United States in the Spanish American War, and for many years prior to his death he drew a pension from the United States as such veteran. At the time of his death he resided in Los Angeles County, California, and was 82 years of age. The sole assets of his estate at death was- a balance of his account in bank amounting to $1,235.63, which was the unexpended portion of the pension payments theretofore made to him by the United States. 3. On October 20, 1950, said Robert P. Campbell died intestate, while he was a patient receiving care and treatment from the Veterans Administration in the Veterans Administration hospital at Los Angeles, California. He left no surviving spouse, heirs or next-of-kin entitled to inherit his personal property under the laws of the State of California. 4. Said veteran had applied for admission, and was admitted, as a patient into said Veterans Administration facility on November 11, 1948; and from then until his death he was continuously furnished, and he received and accepted from the Veterans Administration, care and treatment as a patient in said facility. His application for admission was made in writing to the Veterans Administration; and printed upon and as a part of said -application was a notice to him from the Administrator of Veterans Affairs of the provisions of Title 38 U.S.C.A. §§ 17-17j. These sections in effect provide that upon the death of any veteran receiving care or treatment from the Veterans Administration in any of its facilities,"
},
{
"docid": "16343580",
"title": "",
"text": "relative upon the authority of the president of the board of managers (c) to pay taxes, etc., when necessary to protect the interests of the member. The Act of July 1, 1902, provides: “Hereafter any balance of pension money due a member of the National Home ... at the time of his death shall be paid to his widow, minor children or dependent mother or father in the order named, and should” none “be discovered within one year from the time of the death . . . said balance shall be paid to the post fund of the Branch ... of which the pensioner was a member at the time of his death ... subject to future reclamation by the relatives hereinbefore designated, upon application filed . . . within five years after the pensioner’s death.” • Petitioners maintain, and for the purposes of this decision we assume without deciding, that the Act of 1902 relates to pension money paid to the treasurer of a national home for the use and benefit of a member and held by him at the time of the member’s death. But it contains nothing that relates to use or disposition of the fund while the pensioner is alive. It relates exclusively to disposition of the balance in the hands of the treasurer at the time of death. In that respect alone, it conflicts with and supersedes the corresponding provisions of the Act of 1881. The scope and effect of the Act of June 25, 1910, remain to be considered. It provides: “Hereafter the application of any person for membership in the National Home . . . and the admission of the applicant thereunder shall be and constitute a valid and binding contract between such applicant and the Board of Managers of said home that on the death of said applicant while a member . . . leaving no heirs at law nor next of kin, all personal property owned by said applicant at the time of his death, including money or choses in action held by him and not disposed of by will, whether"
}
] |
171627 | See Medina-Morales v. Ashcroft, 371 F.3d 520, 525-27 (9th Cir.2004) (concluding 8 U.S.C. § 1252(a)(2)(B)(i) did not strip jurisdiction to review the BIA’s denial of a motion to reopen because the IJ never ruled on the merits of the petitioner’s adjustment-of-status petition under § 1255); see also Panjwani v. Gonzales, 401 F.3d 626, 632 (5th Cir.2005) (holding that the court had “jurisdiction over the BIA’s denial of an untimely motion to reopen deportation proceedings in instances where the petitioner file[d] such a motion seeking to avail himself of the [statutory] exception for ‘changed circumstances’ ”); Prekaj v. INS, 384 F.3d 265, 267-68 (6th Cir.2004) (explaining that the court had jurisdiction to review the BIA’s decision not to reopen the petitioner’s case); REDACTED B. The BIA’s denial of Torabi’s motion is reviewed for abuse of discretion. Lara, 216 F.3d at 496 (“[T]he abuse of discretion standard applies to motions to reopen regardless of the underlying basis of the alien’s request for relief’.) (quoting INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)) (internal quotation marks omitted). We hold the BIA abused its discretion by its untimeliness basis for denial. 1. Pursuant to regulation, not statute, a motion to reopen must be filed within 90 days of the date of entry of the final administrative | [
{
"docid": "22630720",
"title": "",
"text": "assistance of counsel. As the parties agree, we have jurisdiction to consider the BIA’s denial of reconsideration. There is no statutory provision for reopening; the authority to reopen derives solely from regulations promulgated by the Attorney General. See INS v. Doherty, 502 U.S. 314, 322, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); 8 C.F.R. § 3.2 (1999). The regulations authorize, but do not require, the BIA to reopen proceedings under, certain circumstances. See Doherty, 502 U.S. at 322-23, 112 S.Ct. 719. The grant of a' motion to reopen is therefore discretionary. See id. The attorney general has “broad discretion” to grant or deny such a motion. Id.; see also Pritchett v. INS, 993 F.2d 80, 83 (5th Cir.1993) (same). We therefore apply a highly deferential abuse of discretion standard in reviewing the BIA’s denial of a motion to reopen. See Pritchett, 993 F.2d at 83 (“The standard is whether the Board has acted within the bounds of an abundant discretion granted it by Congress”) (internal citation omitted). “[T]he abuse of discretion standard applies to motions to reopen regardless of the underlying basis of the alien’s request for relief.” Doherty, 502 U.S. at 323, 112 S.Ct. 719 (internal citation omitted). Moreover, “motions for reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing and motions for a new trial on the basis of newly discovered evidence.” Doherty, 502 U.S. at 323, 112 S.Ct. 719; see also Ghassan v. INS, 972 F.2d 631, 638 (5th Cir.1992) (“Reopening and reconsideration are disfavored.”). “This is especially true in a deportation proceeding, where, as a general matter, every delay works to the advantage of the deportable alien.” Doherty, 502 U.S. at 323, 112 S.Ct. 719. A. In Matter of Lozada, 19 I & N Dec. 637, 639, 1988 WL 235454 (BIA), aff'd 857 F.2d 10 (1st Cir.1988), the BIA set out three procedural requirements for supporting a claim of ineffective assistance of counsel as a basis for reopening. The BIA required: 1) an affidavit by the alien setting forth the relevant facts, including the agreement with counsel regarding the alien’s"
}
] | [
{
"docid": "22179961",
"title": "",
"text": "of his motion to reopen, it should nevertheless reinstate his earlier grant of voluntary departure. A. Motion to Reopen Harchenko first challenges the BIA’s denial of his motion to reopen. He argues that the BIA erred in concluding that his motion to reopen was untimely, in deciding that he had failed to demonstrate changed country conditions in the Ukraine, in declining to exercise its sua sponte authority to reopen proceedings, and in finding that it lacked the authority to reinstate voluntary departure. This court reviews the BIA’s denial of a motion to reopen for an abuse of discretion. INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Legal issues are reviewed de novo. See Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir.1998). Under the rules in effect at the time the Harchenkos filed their asylum petition, a motion to reopen in any case previously the subject of a final decision by the BIA had to be filed no later than 90 days after the date of the BIA’s decision. See 8 C.F.R. § 3.2(c)(2). However, the 90-day filing deadline does not apply to motions to reopen (1) filed by aliens who are deported in absentia; (2) filed by aliens seeking asylum or withholding of deportation based on changed country circumstances; (3) jointly filed by the alien and the INS; and (4) filed by the INS where the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum. 8 C.F.R. § 3.2(c)(3)(i-iv). Because they filed their motion to reopen well after the BIA’s May 2000 decision, the Harchenkos asked the INS to join in their motion, but the INS declined on the grounds that the Har-chenkos were statutorily ineligible to seek an adjustment of status until after June 22, 2005, due to their failure to voluntarily depart within 30 days of the final order of deportation. Before the BIA on their motion to reopen, the Harchenkos argued that their voluntary departure period was tolled until 30 days after this court issued its mandate in Harchenko I"
},
{
"docid": "22780587",
"title": "",
"text": "are not relevant to his persecution claim. We separately note that the respondent may address a request for humanitarian parole for medical treatment to the DHS, as requests for deferred action are within the jurisdiction of DHS, not the Immigration Courts or this Board.” (AR at 4.) The BIA concluded that Pllumi had “not presented an exceptional situation which would warrant reopening” and declined to exercise its authority to reopen his case sua sponte. Pllumi has petitioned for review of the BIA’s decision that he failed to demonstrate changed country conditions such that he would be eligible for reopening under 8 C.F.R. § 1003.2(c)(3)(ii). Alternatively, he contends that his petition should be granted because the BIA’s refusal to sua sponte reopen his proceedings is predicated on an error of law. II. Standard of Review In immigration cases, we review a denial of a motion to reopen or a motion to reconsider for abuse of discretion, regardless of the underlying basis of the alien’s request for relief. INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003). We give the BIA’s decision broad deference and generally do not disturb it unless it is “arbitrary, irrational, or contrary to law.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (citation and quotation omitted). However, motions that ask the BIA to sua sponte reopen a case are of a different character. Because such motions are committed to the unfettered discretion of the BIA, we lack jurisdiction to review a decision on whether and how to exercise that discretion. Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003). Nevertheless, in Mahmood v. Holder the United States Court of Appeals for the Second Circuit suggested that there is jurisdiction to remand to the BIA for reconsideration when the BIA’s decision to decline to exercise its sua sponte authority is based on a misperception of the relevant law. 570 F.3d 466, 469 (2d Cir.2009). In Mahmood, the petitioner, a native of Pakistan, filed for an adjustment of status after his marriage to a"
},
{
"docid": "22393413",
"title": "",
"text": "failure to timely file a motion to reopen does not neces sarily preclude this Court’s review because the failure to so file is not considered a concomitant failure to exhaust one’s administrative remedies. Furthermore, in denying Panjwani’s motion to reopen, the BIA specifically concluded that Panjwani failed to establish “changed circumstances” in his native country of India, and therefore his motion did not fall within the exception provided by § 1003.2(c)(3)(ii). Nowhere within the language of its order does the BIA contemplate or address Panjwani’s alleged failure to exhaust his available administrative remedies — an alleged failure the Government asserts constitutes the sole reason this Court lacks appellate jurisdiction. In sum, we conclude that we have appellate jurisdiction over the BIA’s denial of an untimely motion to reopen deportation proceedings in instances where the petitioner files such a motion seeking to avail himself of the exception for “changed circumstances” under 8 C.F.R. § 1003.2(c)(3)(ii). II. Whether the BIA abused its discretion in denying Panjwani’s motion to reopen his deportation proceedings. Having determined that we have appellate jurisdiction in this matter, we now decide whether the BIA erred in denying Panjwani’s motion to reopen by not considering the changed circumstances that Pan-jwani asserts establishes a well-founded fear of persecution. The BIA’s denial of a motion to reopen is reviewed for abuse of discretion and its factual findings are reviewed for substantial evidence. De Morales v. INS, 116 F.3d 145, 147 (5th Cir.1997). The Supreme Court has stated that “the tenor of the Attorney General’s regulations ... plainly disfavor[s] motions to reopen.” INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). And, under this deferential standard, the Attorney General’s discretionary judgment as to whether to grant or deny relief is “conclusive unless manifestly contrary to law and an abuse of discretion.” INA § 242(b)(4)(D). The relevant regulations provide that an alien may file one motion to reopen, provided such motion is filed within 90 days of a final order. 8 C.F.R. § 1003.2(c)(2). The BIA dismissed Panjwani’s appeal on April 30, 2003, based on his failure to"
},
{
"docid": "22698324",
"title": "",
"text": "to reopen for an abuse of discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Stewart v. U.S. INS, 181 F.3d 587, 595 (4th Cir.1999). Motions to reopen “are disfavored ... [because] every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” Doherty, 502 U.S. at 323, 112 S.Ct. 719. We thus reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). By regulation, a motion to reopen “must be filed no later than 90 days ” after the date on which the administrative decision at issue becomes final. 8 C.F.R. § 1003.2(c)(2) (emphasis added). Given the clear language, it is impossible for us to say that the BIA abused its discretion in finding Mosere’s motion, filed more than eleven years after the order of voluntary departure, untimely. Finding no abuse of discretion, we affirm the BIA’s denial of Mosere’s motion to reopen as untimely. B. Mosere next alleges that the BIA erred by declining to exercise its discretionary power to sua sponte reopen Mos-ere’s asylum application for extraordinary circumstances. Every circuit that has considered this issue has determined that the BIA’s decision whether to exercise its power to reopen sua sponte is unreviewable because there are no meaningful standards for courts to apply in review. Tamenut v. Mukasey, 521 F.3d 1000, 1004-05 (8th Cir. 2008) (en banc) (per curiam); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir.1999); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999). We have reached the same decision in a prior unpublished opinion, Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir.2006) (per curiam), and we reaffirm that holding today. Section 1003.2(a)"
},
{
"docid": "13828430",
"title": "",
"text": "petition for review of the denial of the stay and an emergency motion to stay removal. This court denied her motion to stay and dismissed the petition for review on April 11, 2017. Trujillo Diaz was deported eight days later. On May 24, 2017, the BIA denied Trujillo Diaz’s motion to reopen her removal proceedings, finding that she had not demonstrated prima facie eligibility for asylum, withholding of removal, or protection under the Convention Against Torture. This petition for review followed. II A. Standard of Review We review the BIA’s denial of a motion to reopen immigration proceedings for abuse of discretion. Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007). We will find an abuse of discretion if the BIA’s denial “was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Alla-bani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005) (citation omitted). In determining whether the BIA abused its discretion, we look only at “the basis articulated in the decision and [we] may not assume that the [BIA] considered factors that it failed to mention in its opinion.” Daneshvar v. Ashcroft, 355 F.3d 615, 626 (6th Cir. 2004). B. Discussion Motions to reopen immigration proceedings are generally “disfavored,” in light of the strong public interest in the finality of removal orders. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); INS v. Abudu, 485 U.S. 94, 107-08, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (“Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case.” (quoting INS v. Jong Ha Wang, 450 U.S. 139, 143 n.5, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981))). Evincing the importance of finality, both temporal and numerical limits apply to motions to reopen. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c). Generally, a motion to reopen must be filed within ninety days of the final administrative decision. 8"
},
{
"docid": "5172659",
"title": "",
"text": "time and numerical limitations for filing a motion to reopen. 8 C.F.R. § 1003.2(c)(3)(ii) (2007). Accordingly, the instant motion is denied as barred by both the number and time limitations on motions to reopen. A.R. 3. Lindor filed a timely notice of petition for review with this court. II. DISCUSSION We review the denial of a motion to reopen for an abuse of discretion. Tapia-Martinez v. Gonzales, 482 F.3d 417, 421 (6th Cir.2007). Issues of law are reviewed de novo. Id. “The Supreme Court has made clear that reopening is discretionary with the BIA and that the BIA retains broad discretion to grant or deny such motions. Because the BIA has such broad discretion, a party seeking reopening or reconsideration bears a ‘heavy burden.’ ” Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir.2007) (citing INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)); see also Daneshvar v. Ashcroft, 355 F.3d 615, 625 (6th Cir.2004) (noting that the BIA’s discretion “is broad but is not unlimited”). “The BIA abuses its discretion when it acts arbitrarily, irrationally or contrary to law.” Sswajje v. Ashcroft, 350 F.3d 528, 532 (6th Cir.2003). In determining whether an abuse of discretion occurred, we must decide whether the denial of the motion to reopen “was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir.2005) (quotation marks omitted). A party must generally file a motion to reopen “within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); see also 8 C.F.R. § 1003.2(c)(2). However, one exception to this ninety-day time limit is for motions “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.” 8 U.S.C. § 1229a(e)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(h) (“The time"
},
{
"docid": "280418",
"title": "",
"text": "(albeit retaining jurisdiction). On remand, the BIA concluded that the petitioner had failed to present evidence demonstrating a material change in China’s country conditions since he was ordered removed in 2001. Rather, the only changes were in the petitioner’s personal circumstances in the United States, and such changes are not a valid basis for an exception to the temporal limitation for filing a motion to reopen. See Ming Chen v. Holder, 722 F.3d 63, 66 (1st Cir.2013). A new petition for judicial review followed. In the immigration context, this court ordinarily reviews the decision of the BIA rather than that of the IJ. See Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir.2012). To the extent that the BIA adopts portions of the IJ’s findings while adding its own gloss, however, we treat the two decisions as a unit. See id. We review denials of motions to reopen solely for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir.2014). The agency’s resolution of such a motion will stand unless that resolution rests on a material error of law or a manifestly arbitrary exercise of judgment. See Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir.2005). Motions to reopen removal proceedings are disfavored because such motions are “contrary to the compelling public interests in finality and the expeditious processing of proceedings.” Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st Cir.2007) (internal quotation marks omitted). Such motions are generally limited both numerically and temporally. A party ordinarily may file only one motion to reopen, and that motion must be filed within 90 days of the date of entry of the final administrative order. See 8 C.F.R. § 1003.23(b)(1). To be sure, this strict regime admits of certain narrowly circumscribed exceptions. Pertinently, an in absentia order of removal may be reopened if the alien can show either that he did not receive proper notice of the removal proceedings or that his failure to appear was due to exceptional circumstances beyond his control."
},
{
"docid": "22708022",
"title": "",
"text": "for relief. While we could review that ruling for its soundness, Ontive-ros-Lopez instead urges us to grant relief on the basis of ineffective assistance of counsel. This we cannot do. Ontiveros-Lopez’s direct appeal of the IJ’s deportation order to the BIA did not present ineffective assistance of counsel as a ground for relief, and the BIA did not have the opportunity to develop a record and pass on the issue. We therefore deny the first petition for its failure to satisfy the administrative exhaustion requirement. Ill The second petition asks us to review the BIA’s denial of Ontiveros-Lopez’s motion to reopen his deportation proceedings on the basis of ineffective assistance of counsel. The motion to reopen squarely presented the ineffective assistance of counsel claim to the BIA, and the claim has therefore been properly exhausted. We have jurisdiction to review the BIA’s denial of the motion to reopen under Section 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a). We review the denial of a motion to reopen for an abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). “An abuse of discretion will be found when the denial was arbitrary, irrational or contrary to law.” Watkins v. INS, 63 F.3d 844, 847 (9th Cir.1995) (internal quotation marks omitted). We hold that the BIA abused its discretion in this case. Although the BIA acts within its discretion to impose the heightened Lozada procedural requirements, see 8 C.F.R. § 3.2(c); INS v. Jong Ha Wang, 450 U.S. 139, 145, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981) (per curiam), it may not impose the Lozada requirements arbitrarily. See Castillo-Perez v. INS, 212 F.3d 518, 525-27 (9th Cir.2000); Escobar-Grijalva, 206 F.3d at 1335 (describing the requirements of Lozada as “reasonable rules for the normal ineffective assistance claim” but “not dispositive” under the circumstances of the case). In this case, the BIA may not ignore counsel’s declaration, attached to the motion to reopen, describing his diligent efforts to obtain the materials necessary for meeting the Lozada standard. Documents were requested from Ontiveros-Lopez’s original"
},
{
"docid": "22234989",
"title": "",
"text": "changed circumstance of Haddad’s divorce. The Board denied the motion as untimely because, given the nineteen months that had elapsed since the initial appeal was denied and the thirty-nine months that had elapsed since the divorce, it had not been filed “in a ‘reasonable’ time.” J.A. at 9 (BIA Decision of Oct. 1, 2004) Haddad now petitions for review. II. ANALYSIS A.Jurisdiction and Standard of Review We have jurisdiction to review the denial of a motion to reopen. 8 U.S.C. § 1252(a); Prekaj v. INS, 384 F.3d 265, 268 (6th Cir.2004). “The decision to grant or deny a motion to reopen ... is within the discretion of the Board.” 8 C.F.R. § 1003.2(a). Accordingly, we review the BIA’s denial of a motion to reopen for an abuse of discretion. Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir.2005) (citing INS v. Abudu, 485 U.S. 94, 107-08, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)); Harchenko v. INS, 379 F.3d 405, 409 (6th Cir.2004) (citing INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). This standard requires us to “ ‘decide whether the denial of [the] motion to reopen ... was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.’ ” Allabani, 402 F.3d at 675 (alterations in original) (quoting Balani v. INS, 669 F.2d 1157, 1161 (6th Cir.1982)). We review de novo legal issues. Harchenko, 379 F.3d at 409. B. Merits An alien may usually file only one motion to reopen removal proceedings. 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). The motion typically must be filed within ninety days of the final administrative decision sought to be reopened. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(e)(2). The ninety-day deadline does not apply, however, if the motion to reopen is made in order to apply for asylum and “is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered,” as long as such changes are “material and [were] not"
},
{
"docid": "22068829",
"title": "",
"text": "by his attorney’s failure to file the initial BIA appeal in a timely manner. In re Assaad, 23 I. & N. Dec. 553 (BIA 2003). Assaad now petitions this court for review of the BIA’s denial of his motion to reopen. II. DISCUSSION As an initial matter, the government argues that we lack jurisdiction to review the BIA’s denial of Assaad’s motion to reopen under 8 U.S.C. § 1252(a)(2)(B)(ii), which bars judicial re- view of “any ... decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General.” According to the government, this section bars federal court review of Assaad’s petition because the BIA has complete discretion in deciding whether to grant an alien’s motion to reopen. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (“The granting of a motion to reopen is ... discretionary, and the Attorney General has ‘broad discretion’ to grant or deny such motions.” (citations omitted)); 8 C.F.R. § 1003.2(a) (“The decision to grant or deny a motion to reopen ... is within the discretion of the Board.”). Although Assaad concedes that we have, in the past, afforded the BIA wide discretion in addressing motions to reopen, see, e.g., Efe v. Ashcroft, 293 F.3d 899, 904 (5th Cir.2002), he does not agree that Congress intended to strip federal courts of the power to review the BIA’s denials of these motions. For example, he notes that § 1252(b)(6), which instructs that “any review sought of a motion to reopen ... shall be consolidated with the review of the order [of removal],” would be rendered meaningless by the government’s interpretation of § 1252(a)(2)(B)(ii). His position finds further support in Medina-Morales v. Ashcroft, 371 F.3d 520 (9th Cir.2004). There, the Ninth Circuit held that the plain language of § 1252(a)(2)(B)(ii) does not bar judicial review of motions to reopen because the BIA’s discretion to grant or to deny these motions “derives solely from regulations promulgated by the Attorney General, rather than from a statute.” Id. at 528 (citations"
},
{
"docid": "22698323",
"title": "",
"text": "to deport, [and] ... she previously committed marriage fraud in an attempt to remain here.” (J.A. at 2.) Mosere filed a timely petition for review, and 8 U.S.C.A. § 1252(a)(1) (West 2005) provides our jurisdiction. During the pen-dency of the petition for review, Mosere filed a motion for stay of deportation in our court, and the Government filed a motion to dismiss Mosere’s petition for lack of jurisdiction. On March 27, 2008, a panel of this court denied Mosere’s motion for stay and delayed action on the Government’s motion to dismiss. On April 29, 2008, Mosere’s motion for reconsideration was denied. After hearing oral argument, we now conclude both that the BIA did not abuse its discretion in determining that Mosere’s motion to reopen was untimely and that we lack jurisdiction to review the BIA’s refusal to exercise its power to reopen sua sponte. We address each issue in turn. II. A. Mosere first contends that the BIA erred by concluding that her motion to reopen was untimely. We review the denial of a motion to reopen for an abuse of discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Stewart v. U.S. INS, 181 F.3d 587, 595 (4th Cir.1999). Motions to reopen “are disfavored ... [because] every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” Doherty, 502 U.S. at 323, 112 S.Ct. 719. We thus reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). By regulation, a motion to reopen “must be filed no later than 90 days ” after the date on which the administrative decision at issue becomes final. 8 C.F.R. § 1003.2(c)(2) (emphasis added). Given the clear language, it is impossible for us to say that the BIA abused its discretion in finding Mosere’s motion, filed more than eleven years after the order of voluntary departure, untimely. Finding no abuse of discretion, we affirm the BIA’s denial of Mosere’s motion to reopen as untimely. B. Mosere"
},
{
"docid": "22351359",
"title": "",
"text": "the denial of the motion to reopen. In December 2000, Mahmood’s counsel appealed the May 1999 order to the BIA, and it dismissed the appeal as untimely in June 2001. Mahmood retained new counsel and filed his third motion to reopen in July 2002, alleging ineffective assistance of counsel and seeking an adjustment of status in light of an approved 1-130 petition filed by Karen Mahmood (née Zimmerman), who had married Mahmood in April 2001. The IJ denied the motion in September 2002 on the ground that it had been filed over three years after the IJ issued the in absentia order (that was the subject of the second motion to reopen), and thus long after the applicable time limits for moving to reopen had passed. The BIA dismissed Mahmood’s second appeal in August 2003, and he timely petitioned for our Court’s review. II. Standard of Review We review a final order of the BIA denying a motion to reopen for abuse of discretion. Cf. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Review of the BIA’s legal conclusions is de novo, with appropriate deference to the agency’s interpretation of the underlying statute in accordance with administrative law principles. Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Findings of fact may not be disturbed if supported by substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003) (en banc). III. Discussion A. Equitable Tolling and Ineffectiveness of Counsel Generally, a motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). With respect to in absentia orders of removal, an alien has 180 days to file a motion to reopen that seeks to demonstrate that the failure to appear was because of “exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). The BIA concluded that Mahmood’s motion was untimely under both deadlines. When this petition"
},
{
"docid": "22160093",
"title": "",
"text": "§ 241(a)(1)(B) by overstaying his visa. Abassi appeared before an Immigration Judge (“IJ”), conceded deportability, and applied for asylum and withholding of deportation. The IJ denied Abassi’s application. The BIA affirmed the IJ’s decision on August 6, 1998. Abassi did not appeal the BIA’s decision. On June 21, 1999, Abassi filed a pro se motion to reopen deportation proceedings pursuant to Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treat ment or Punishment (“Convention”). On February 23, 2001, Abassi, again acting-pro se, filed another motion to reopen to apply for adjustment of status based on his marriage to a United States citizen. On April 26, 2001, the BIA denied Abas-si’s first motion to reopen under the Convention because he did not show prima facie eligibility for such relief. At the same time, it also denied his second motion to reopen for adjustment of status as untimely under 8 C.F.R. § 3.2(c)(2), which states that a “motion to reopen deportation or exclusion proceedings ... 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.” Abassi petitions for review of both denials. II. Discussion To the extent we have jurisdiction, we review the BIA’s denial of motions to reopen for an abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (agency’s denial of a motion to reopen is reviewed for an abuse of discretion regardless of the underlying basis of the alien’s request for relief). Because Abassi’s petition for review is limited to the denial of his motions to reopen, we do not review the merits of his original application for asylum and withholding of deportation. A. Motion to Reopen under the Convention An alien seeking to reopen proceedings for purposes of obtaining protection under the Convention Against Torture must establish a prima facie case “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. §§"
},
{
"docid": "22234988",
"title": "",
"text": "both Ishaq and Haddad lacking in credibility. The IJ did, however, grant voluntary departure to Jordan. On December 10, 2002, the BIA affirmed the IJ’s decision without opinion. A panel of this court denied Ishaq’s petition for review because substantial evidence supported the IJ’s decision. Ishaq v. INS., No. 03-3020 (6th Cir. Feb. 9, 2005) (unpublished order). Before the denial of the petition for review, Haddad moved this court to remand her case to the BIA to permit her to file a new asylum application because she had divorced Ishaq on June 27, 2001. A panel of this court denied Haddad’s motion and referred Haddad to “the established procedures for moving to reopen [her case] and seeking] additional relief before the Board.” Ishaq v. Ashcroft, No. 03-3020 (6th Cir. Aug. 9, 2004) (unpublished order). On August 17, 2004, Haddad filed with the BIA a motion to reopen accompanied by an asylum application. The BIA construed the motion to be exempt from the usual ninety-day deadline for motions to reopen because it was based on the changed circumstance of Haddad’s divorce. The Board denied the motion as untimely because, given the nineteen months that had elapsed since the initial appeal was denied and the thirty-nine months that had elapsed since the divorce, it had not been filed “in a ‘reasonable’ time.” J.A. at 9 (BIA Decision of Oct. 1, 2004) Haddad now petitions for review. II. ANALYSIS A.Jurisdiction and Standard of Review We have jurisdiction to review the denial of a motion to reopen. 8 U.S.C. § 1252(a); Prekaj v. INS, 384 F.3d 265, 268 (6th Cir.2004). “The decision to grant or deny a motion to reopen ... is within the discretion of the Board.” 8 C.F.R. § 1003.2(a). Accordingly, we review the BIA’s denial of a motion to reopen for an abuse of discretion. Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir.2005) (citing INS v. Abudu, 485 U.S. 94, 107-08, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)); Harchenko v. INS, 379 F.3d 405, 409 (6th Cir.2004) (citing INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d"
},
{
"docid": "6379373",
"title": "",
"text": "June 2, 2005 decision, the Government contends that his appeal is untimely and cannot be reviewed by this Court. The Sixth Circuit addressed a similar situation in Prekaj v. I.N.S., 384 F.3d 265, 267 (6th Cir.2004). There, the Court noted that the petitioner sought review of the IJ’s decision, the subsequent decision by the BIA, and the BIA’s later decision denying the petitioner’s motion to reopen his case. The Prekaj Court concluded that it did not have jurisdiction to review the IJ’s decision directly because it is not considered a final order, and the Court could not review the BIA’s initial decision because the petitioner filed his appeal more than eight months after the BIA’s decision. Ultimately, the Prekaj Court held that it had jurisdiction over only the denial of the motion to reopen, and declined jurisdiction on the previous two issues. For the same reasons as in Prekaj, this Court declines to review the .BIA’s June 2, 2005 decision, and exercises jurisdiction over only the BIA’s April 17, 2007 decision. III. DISCUSSION A. Standard of Review Ordinarily, an alien must file a motion to reopen within 90 days of the BIA’s final order. In this case, Hanna failed to file his motion to reopen until nearly 17 months after the BIA’s June 2, 2005 decision. However, regulations provide that the 90-day requirement does not apply to motions to reopen “based on changed circumstances arising in the country of nationality ..., if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1008.2(c)(3)(ii). Accordingly, Hanna’s motion to reopen was not time-barred because it specifically sought to reopen the proceedings based upon the changed circumstances of Iraq since the BIA’s June 2, 2005 decision. The BIA has “broad discretion” to grant or deny a motion to reopen. I.N.S. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Accordingly, we apply the abuse of discretion standard to appeals of such BIA decisions. Id.; Harchenko v. I.N.S., 379 F.3d 405, 409 (6th Cir.2004). Furthermore, that standard"
},
{
"docid": "19651138",
"title": "",
"text": "removal.” Id. at 892; see also Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir. 2005) (reiterating after the REAL ID Act, Pub.L. No. 109-13, Div. B, 119 Stat. 231 (2005), that “we lack jurisdiction to review the IJ’s subjective, discretionary determination that Martinez-Rosas did not demonstrate ‘exceptional and extremely unusual hardship’ under 8 U.S.C. § 1229b(b)(1)(D)”). The case before us involves the denial of a motion to reopen, however, not a BIA decision on direct appeal from an IJ, and therefore presents a distinct question. Our most detailed analysis of § 1252(a)(2)(B)(i)’s effect on our jurisdiction to review motions to reopen that im plicate discretionary determinations appears in Medina-Morales v. Ashcroft, 371 F.3d 520 (9th Cir.2004). In that case, the petitioner withdrew his application for adjustment of status before the IJ, because his stepfather failed to appear at the removal hearing. He subsequently filed a motion to reopen with the IJ, accompanied by an affidavit from his stepfather explaining why he had not attended the hearing. Medina-Morales stated: [W]e conclude that § 1252(a)(2)(B)(i) does not withdraw our jurisdiction to review the BIA’s denial of Medina-Morales’ motion to reopen. Because Medina-Morales abandoned his petition for adjustment of status and instead accepted voluntary departure, the IJ never ruled on Medina-Morales’ adjustment of status petition but instead granted his request for voluntary departure. Medina-Morales does not, therefore, appeal the denial of an adjustment of status application under § 1255 or a denial of voluntary departure under § 1229c. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1169 (9th Cir.2003) (rejecting the government’s argument that the denial of an alien’s motion to reopen “involve[d] a ‘judgment regarding the granting’ of voluntary departure” within the meaning of § 1252(a)(2)(B)(i), where the alien had been granted voluntary departure). Rather, Medina-Morales’ appeal “involves a decision regarding the denial of a motion to reopen,” Zazueta-Carrillo, 322 F.3d at 1169-70. The denial of Medina-Morales’ motion to reopen is a decision under 8 U.S.C. § 1182(a)(6)(A)(i), the provision relied upon by the INS as the basis for his removability. See Rodriguez-Lariz [v. INS, 282 F.3d 1218, 1223 (9th Cir.2002)]. The"
},
{
"docid": "22584423",
"title": "",
"text": "had in fact not been approved at the time she swore out and filed her affidavit. On November 16, 2005, Petitioner moved for the BIA to reconsider the denial of her motion to reopen, arguing her affidavit and attached 1-485 were sufficient to entitle her to relief and that DHS had now found that her marriage was valid by approving the 1130. The BIA denied the motion to reconsider on December 20, 2005, stating that the approval notice of the I-130 was new evidence which could not be considered in a motion to reconsider and that even if Appellant’s motion were styled a motion to reopen with new evidence, that motion would be denied because it is a second motion to reopen, which is barred by statute and regulation. Petitioner also appeals that decision (No. 06-3067). We have jurisdiction pursuant to 8 U.S.C. § 1252, which authorizes this Court to review final orders of removal. However, this Court lacks jurisdiction to review any issues that have not been raised and administratively exhausted below. See 8 U.S.C. § 1252(d)(1); Ramani v. Ashcroft, 378 F.3d 554, 558 (6th Cir.2004). This Court reviews the BIA’s denial of a motion to reopen for abuse of discretion. I.N.S. v. Abudu, 485 U.S. 94, 96, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988); Daneshvar v. Ashcroft, 355 F.3d 615, 625 (6th Cir.2004). The Court also reviews the BIA’s denial of a motion to reconsider for abuse of discretion. Sswajje v. Ashcroft, 350 F.3d 528, 532 (6th Cir.2003). The BIA abuses its discretion when it acts arbitrarily, irrationally, or contrary to law. Babai v. I.N.S., 985 F.2d 252, 255 (6th Cir.1993). The Supreme Court has made clear that reopening is discretionary with the BIA and that the BIA retains broad discretion to grant or deny such motions. I.N.S. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Because the BIA has such broad discretion, a party seeking reopening or reconsideration bears a “heavy burden.” Id. II. Petitioner first challenges the BIA’s denial of her motion to reopen. The BIA found that the evidence she"
},
{
"docid": "6379374",
"title": "",
"text": "of Review Ordinarily, an alien must file a motion to reopen within 90 days of the BIA’s final order. In this case, Hanna failed to file his motion to reopen until nearly 17 months after the BIA’s June 2, 2005 decision. However, regulations provide that the 90-day requirement does not apply to motions to reopen “based on changed circumstances arising in the country of nationality ..., if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1008.2(c)(3)(ii). Accordingly, Hanna’s motion to reopen was not time-barred because it specifically sought to reopen the proceedings based upon the changed circumstances of Iraq since the BIA’s June 2, 2005 decision. The BIA has “broad discretion” to grant or deny a motion to reopen. I.N.S. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Accordingly, we apply the abuse of discretion standard to appeals of such BIA decisions. Id.; Harchenko v. I.N.S., 379 F.3d 405, 409 (6th Cir.2004). Furthermore, that standard applies “ ‘regardless of the underlying basis of the alien’s request [for relief].’” Doherty, 502 U.S. at 323, 112 S.Ct. 719 (quoting I.N.S. v. Abudu, 485 U.S. 94, 99 n. 3, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)). In reviewing for abuse of discretion, this Court asks whether the denial of the motion to reopen “was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir.2006) (quotation marks and citation omitted). B. Refugee Crisis in Iraq Act of 2007 At oral argument, Hanna’s counsel mentioned for the first time a new statute enacted since Hanna filed this appeal. Consequently, this Court granted a request to file supplemental briefing regarding the new statute and its applicability to the instant case. On January 28, 2008, the President signed into law the Refugee Crisis in Iraq Act of 2007. The Act provides that “[refugees of special humanitarian concern eligible for Priority 2 processing"
},
{
"docid": "9469835",
"title": "",
"text": "and (ii) reopening would be futile because the petitioner had overstayed his voluntary departure date and,' accordingly, was barred from readjusting his status. The IJ did not comment on the fact that the motion apparently had been filed out of time. See 8 C.F.R. § 1003.23(a)(1) (ordaining that a motion to reopen must be filed within ninety days of the date of entry of a final administrative order). The petitioner took a timely appeal to the BIA. He did not address the first ground relied on by the IJ and only obliquely attempted to counter the second ground. Instead, he reiterated the same claims he had made in his second motion to reopen.’ The BIA affirmed without opinion on April 21, 2004. This petition for judicial review followed. The abuse of discretion standard governs judicial review of the denial of a motion to reopen, regardless of the substantive claim involved. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Where, as here, the BIA has employed its streamlined “affir-mance without opinion” procedure, see 8 C.F.R. § 1003.1(e)(4),, we review directly the IJ’s decision as if it were the decision of the BIA. See Keo v. Ashcroft, 341 F.3d 57, 60 (1st Cir.2003); El Moraghy v. Ashcroft, 331 F.3d 195, 203 (1st Cir.2003). In so doing, we focus not on the merits of the petitioner’s excludability, but, rather, on the IJ’s decision to deny the motion to reopen. Carter v. INS, 90 F.3d 14, 16-17 (1st Cir.1996). Here, then, we proceed to examine the two grounds underpinning the IJ’s order. The first ground is that the petitioner’s motion was a second motion to reopen and, thus, numerically barred. The applicable regulation places a numerical ceiling of one on the number of motions to reopen that a party may , file before an IJ. See 8 C.F.R. § 1003.23(b)(1) (stating that “a party may file only ... one motion to reopen proceedings”). The petitioner has never disputed that his January 13, 2003 motion to reopen was numerically barred under this regulation (after all, he had filed"
},
{
"docid": "22771138",
"title": "",
"text": "delineated barred subsection. One court has held such in the context of INA § 242(a)(2)(B)®, 8 U.S.C. § 1252(a)(2)(B)®. See Medina-Morales, 371 F.3d at 527 (finding BIA’s denial of motion to reopen was a decision affirming removal under § 1182(a)(6)(A)®, not based on an adverse determination of the merits under § 1229c or § 1255, and thus was not barred from review by § 1252(a)(2)(B)®). We agree with such reasoning here and hold that review of the BIA’s denial of the Manzanos’ motion to reopen pursuant to 8 C.F.R. § 1003.2 is not barred by § 1252(a)(2)(B)® because such denial was an affirmance of their removability under § 1182(a)(6)(A)®, not an adverse determination of the merits of Mr. Manzano’s requested adjustment of status under § 1255. II. Whether the BIA abused its discretion in denying the Manzanos’ motion to reopen. We review the BIA’s denial of a motion to reopen proceedings under a highly deferential abuse of discretion standard. Zhao, 404 F.3d at 303; see also Lara v. Trominski, 216 F.3d 487, 496 (5th Cir.2000) (“[M]otions for reopening of immigration proceedings are disfavored ....”) (quoting Doherty, 502 U.S. at 323, 112 S.Ct. 719). Even where the petitioner has made out aprima facie case of eligibility for suspension of removal, the BIA can choose to deny the motion to reopen if it finds “the movant has not introduced previously unavailable, material evidence.” Abudu, 485 U.S. at 104-05, 108 S.Ct. 904 (noting the proper standard of review for a denial on such ground is abuse of discretion). Such discretion is not to be disturbed “so long as it is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so aberrational that it is arbitrary rather than the result of any perceptible rational approach.” Pritchett v. INS, 993 F.2d 80, 83 (5th Cir.1993) (citation omitted). The Manzanos argue that the BIA’s decision to deny their motion to reopen was based on erroneous factfindings and an improper application of the law, and thus that such denial was unreasonable and arbitrary. The main facts the Manzanos dispute are that Mr. Manzano did"
}
] |
514667 | Judge’s August 27,1997 order granting DNA leave to file its second amended counterclaim. 2. The Unions’ joint motion to dismiss Federal Rule of Civil Procedure 12(b)(6) authorizes the district courts to dismiss any complaint (or counterclaim) which fails “to state a claim upon which relief can be granted.” Rule 12(b)(6) affords plaintiff/counter-defendant unions an opportunity to test whether, as a matter of law, the defendant/counter-plaintiff DNA is entitled to legal relief on its counterclaim against plaintiff/eounter-defendant unions even if everything alleged in the counterclaim is true. In applying the standards under Rule 12(b)(6) the court must presume all well-pleaded factual allegations in the counterclaim to be true and draw all reasonable inferences from those allegations in favor of the non-moving party. REDACTED Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995) The court need not, however, accord the presumption of truthfulness to any legal conclusion, opinions or deductions, even if they are couched as factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 629 (9th Cir.1981); Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 432 (7th Cir.1978); Sexton v. Barry, 233 F.2d 220, 223 (6th Cir.1956) Dismissal for failure to state a claim is disfavored: [A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 | [
{
"docid": "22783853",
"title": "",
"text": "and in determining whether the statements are actionable, the court must scrutinize the nature of the statement to determine whether the statement was false when made. While analyzing the nature of the statement, the Court must emphasize whether the prediction suggested reliability, bespoke caution, was made in good faith, or had a sound factual or historical basis. The district court, in light of its decision regarding Mayer’s complaint, dismissed Ehrenberg’s complaint on March 19. Ehrenberg and Mayer now appeal the district court’s dismissal of their complaints, arguing that they stated a valid claim under federal securities law. Dismissals of complaints for failure to state a claim upon which relief can be granted are subject to de novo review. E.g., Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1039 (6th Cir.1991) (citing Craighead v. E.F. Hutton & Co., 899 F.2d 485, 489 (6th Cir.1990)). All factual allegations are considered to be true. Id. (citing Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969)). If an allegation is capable of several inferences, the allegation must be construed in a light most favorable for the plaintiff. Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)). The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. See Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6th Cir.1987). As the court stated in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” The fundamental purpose of pleadings under the Federal Rules of Civil Procedure is to give adequate notice to the parties of each side’s claims and to allow cases to be decided on the merits after an adequate development of the"
}
] | [
{
"docid": "21113514",
"title": "",
"text": "subscribers, vendors, distribution racks, drop spots, and independent contractors; and arson by setting fire to and/or bombing vehicles at DNA facilities, placing and/or igniting pipe bombs in news racks, and throwing incendiary and explosive devices at and onto DNA property and/or at individuals working for DNA. Count Two alleges that the Unions conspired with and aided and abetted one another to accomplish the pattern of racketeering activity described in Count One. The six unions filed four motions to dismiss the counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(6) on February 12, 1996. On April 2, 1996 Judge Friedman, to whom this case was originally assigned, denied the various motions to dismiss and ordered the DNA to file a more detailed counterclaim and RICO case statement. The DNA complied with this request and filed an amended counterclaim alleging- 248 predicate acts in support of its RICO claim. On August 9, 1996, the six plaintiff unions filed this joint motion to dismiss the defendants’ amended RICO counterclaim. October 24, 1996, the case was reassigned to this court. This court held a status conference on December 19,1996. On January 21,1997, DNA supplemented the original RICO case statement by alleging an additional 11 predicate acts bringing the total alleged predicate acts to 259. Oral argument on the instant motion was heard on January 22,-1997. II. LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) authorizes the district courts to dismiss any complaint (or counterclaim) which fails “to state a claim upon which relief can be granted.” Rule 12(b)(6) affords plaintiff/counter-defendant unions an opportunity to test whether, as a matter of law, the de-fendanVcounter-plaintiff DNA is entitled to legal relief on its counterclaim against plain-tifflcounter-defendant unions even if everything alleged in the counterclaim is true. In applying the standards under Rule 12(b)(6), the court must presume all well-pleaded factual allegations in the counterclaim to be true and draw all reasonable inferences from those allegations in favor of the non-moving party. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993); Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). The court need not, however, accord the"
},
{
"docid": "3263421",
"title": "",
"text": "of the Racketeer Influenced and Corrupt Organizations Act (“RICO”); (2) breach of contact; (3) violation of the Michigan Consumer Protection Act (“the MCPA”); and (4) unjust enrichment. On July 6, 2001, Defendants moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss Plaintiffs’ first amended complaint. Defendants make five arguments: (1) the voluntary-payment doctrine bars Plaintiffs’ claims; (2) the Court should dismiss the RICO claim because Plaintiffs have failed to plead the requisite elements; (3) the Court should dismiss the MCPA claim because Plaintiffs failed to plead fraud with particularity as Federal Rule of Civil Procedure 9(b) requires; (4) the Court should dismiss the claim for breach of contact against Defendants Ser-viceMaster Company and TruGreen, Incorporated, because Plaintiffs fail to allege the element of a contract with those Defendants; and (5) the Court should dismiss the claim for unjust enrichment because that claim is legally incompatible with Plaintiffs’ allegations that an express contract governs the parties’ dispute. II LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) authorizes the district courts to dismiss any complaint that fails “to state a claim upon which relief can be granted.” Rule 12(b)(6) affords a defendant an opportunity to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. In applying the standards under Rule 12(b)(6), the Court must presume all well-pleaded factual allegations in the complaint to.be true and draw all reasonable inferences from those allegations in favor of the non-moving party. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993). The Court will not, however, accord the presumption of truthfulness to any legal conclusion, opinion or deduction, even if it is couched as a factual allegation. Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). The Court will not dismiss a cause of action “for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d"
},
{
"docid": "21113515",
"title": "",
"text": "court. This court held a status conference on December 19,1996. On January 21,1997, DNA supplemented the original RICO case statement by alleging an additional 11 predicate acts bringing the total alleged predicate acts to 259. Oral argument on the instant motion was heard on January 22,-1997. II. LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) authorizes the district courts to dismiss any complaint (or counterclaim) which fails “to state a claim upon which relief can be granted.” Rule 12(b)(6) affords plaintiff/counter-defendant unions an opportunity to test whether, as a matter of law, the de-fendanVcounter-plaintiff DNA is entitled to legal relief on its counterclaim against plain-tifflcounter-defendant unions even if everything alleged in the counterclaim is true. In applying the standards under Rule 12(b)(6), the court must presume all well-pleaded factual allegations in the counterclaim to be true and draw all reasonable inferences from those allegations in favor of the non-moving party. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993); Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). The court need not, however, accord the presumption of truthfulness to any legal conclusion, opinions or deductions, even if they are couched as factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 629 (9th Cir.1981); Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 432 (7th Cir.1978); Sexton v. Barry, 233 F.2d 220, 223 (6th Cir.1956). Dismissal for failure to state a claim is disfavored: [A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). See also Cameron v. Seitz, 38 F.3d 264, 270 (6th Cir.1994) (stating, that-a motion to dismiss should be denied unless “it is clear that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief.”). III. APPLICABLE LAW In 1935, the National Labor Relations Act (the “NLRA”) was enacted by Congress as a broad statutory scheme"
},
{
"docid": "2640113",
"title": "",
"text": "than those allegations that this court found insufficient to state a claim in the April 29, 1998 order. Accordingly, the issue before this court is whether Count VI of plaintiffs’ proposed second amended complaint, which con tains plaintiffs’ claim against DWR for control person liability premised on Turner’s alleged violation of § 10(b), would withstand a motion to dismiss. 2. Standard for dismissal pursuant to Rule 12(b)(6) Federal Rule of Civil Procedure 12(b)(6) authorizes the district courts to dismiss any complaint which fails “to state a claim upon which relief can be granted.” Rule 12(b)(6) affords the individual defendants in this ease an opportunity to test whether, as a matter of law, the plaintiff is entitled to legal relief on his complaint even if everything alleged in the complaint is true. In applying the standards under Rule 12(b)(6), the court must presume all well-pleaded factual allegations in the complaint to be true and draw all reasonable inferences from those allegations in favor of the non-moving party. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993); Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). The court need not, however, accord the presumption of truthfulness to any legal conclusion, opinions or deductions, even if they are couched as factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 629 (9th Cir.1981); Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 432 (7th Cir.1978); Sexton v. Barry, 233 F.2d 220, 223 (6th Cir.1956). Dismissal for failure to state a claim is disfavored: [A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See also Cameron v. Seitz, 38 F.3d 264, 270 (6th Cir.1994) (stating that a motion to dismiss should be denied unless “it is clear that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief’). 3. Analysis a. Control person"
},
{
"docid": "21113516",
"title": "",
"text": "presumption of truthfulness to any legal conclusion, opinions or deductions, even if they are couched as factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 629 (9th Cir.1981); Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 432 (7th Cir.1978); Sexton v. Barry, 233 F.2d 220, 223 (6th Cir.1956). Dismissal for failure to state a claim is disfavored: [A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). See also Cameron v. Seitz, 38 F.3d 264, 270 (6th Cir.1994) (stating, that-a motion to dismiss should be denied unless “it is clear that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief.”). III. APPLICABLE LAW In 1935, the National Labor Relations Act (the “NLRA”) was enacted by Congress as a broad statutory scheme designed to facilitate industrial peace. The NLRA immunized peaceful strike conduct from federal and state court action, and granted the National Labor Relations Board (the “NLRB”) exclusive jurisdiction over labor-management disputes pertaining to wages, hours, and other conditions of employment. The NLRA is remedial and not punitive, thus leaving federal and state courts to respond to civil and criminal matters that arise from, but are in some way independent of, the underlyu labor dispute. In 1970, Congress enacted the Racketeer Influenced and Corrupt Organizations Act (“RICO”) to assist the federal government in stemming the growth of organized crime. RICO provides criminal sanctions as well as civil remedies for a private plaintiff whose business or property is injured by violations of the statute. Specifically, the relevant section of RICO states the following: It shall be unlawful for any person by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering"
},
{
"docid": "7866955",
"title": "",
"text": "to certify a plaintiff class for damages pursuant to Fed.R.Civ.P. 23(b)(3) because the resident plaintiffs were unable to demonstrate that common issues of law and fact predominated among the claims of the individual members of the purported class. Meanwhile, a second action, City of Melvindale v. Darling Int’l, Inc., 98-40439, was filed against defendant by the City of Melvindale setting forth nearly identical claims to those contained in the first action. Specifically, the City asserts claims for nuisance, trespass, negligence, and violation of a city ordinance prohibiting the creation of a public nuisance. The factual bases for the two complaints are nearly identical. On April 30, 1999, defendant filed the instant motion for partial dismissal and/or summary judgment in the Ramik case. On May 17, 1999, defendant filed a similar motion for partial dismissal and/or summary judgment in the City of Melvindale case. Discussion 1. Standard for dismissal pursuant to Rule 12(b)(6) Federal Rule of Civil Procedure 12(b)(6) authorizes the district courts to dismiss any complaint which fails “to state a claim upon which relief can be granted.” Rule 12(b)(6) affords the individual defendants in this case an opportunity to test whether, as a matter of law, the plaintiff is entitled to legal relief on his complaint even if everything alleged in the complaint is true. In applying the standards under Rule 12(b)(6), the court must presume all well- pleaded factual allegations in the complaint to be true and draw all reasonable inferences from those allegations in favor of the non-moving party. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993); Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). The court need not, however, accord the presumption of truthfulness to any legal conclusion, opinions or deductions, even if they are couched as factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 629 (9th Cir.1981); Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 432 (7th Cir.1978); Sexton v. Barry, 233 F.2d 220, 223 (6th Cir.1956). Dismissal for failure to state a claim is disfavored: [A] complaint should not be dismissed for failure to state a claim unless it"
},
{
"docid": "10982050",
"title": "",
"text": "Northern and INA/Cigna have breached their contracts with Dogloo by contending that the Policies do not require the insurers to reimburse Dogloo for the costs incurred by independent counsel in defending against Doskocil’s Counterclaim. Dogloo prays for declaratory relief as well as reimbursement for defense costs incurred in defending against the Doskocil Counterclaim. III. Discussion A. Standard A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. Rule 12(b)(6) must be read in conjunction with Rule 8(a) which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990). Therefore, a court must not dismiss a complaint for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Moore v. City of Costa Mesa, 886 F.2d 260, 262 (9th Cir.1989) (quoting Conley v. Gibson), cert. denied, 496 U.S. 906, 110 S.Ct. 2588, 110 L.Ed.2d 269 (1990); see Haddock v. Board of Dental Examiners of California, 777 F.2d 462, 464 (9th Cir.1985) (complaint should not be dismissed if it states a claim under any legal theory, even if the plaintiff erroneously relies on a different legal theory). A court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986); see also Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir.1980) (finding that the complaint must be read in the light most favorable to the plaintiff). However, a court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Western Min. Council v. Watt, 643 F.2d 618, 624 (9th Cir.), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981). Furthermore, unless a court converts a Rule 12(b)(6) motion into"
},
{
"docid": "10467153",
"title": "",
"text": "to amend a pleading “shall be freely given where justice so requires.” .In determining whether “justice so requires” this court to grant a motion for leave to amend, this court enjoys broad discretion. Hayden v. Ford Motor Company, 497 F.2d 1292, 1294 (6th Cir.1974). Although Rule 15(a) articulates a fairly liberal standard for amendment, it does not require this court to indulge futile amendments. DeLoach v. Woodley, 405 F.2d 496, 496-97 (6th Cir.1968); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). If a proposed amendment would not withstand a motion to dismiss, leave to amend should be denied. Keweenaw Bay Indian Community v. State of Michigan, 11 F.3d 1341, 1348 (6th Cir.1993). Given the generality of Willing’s motion to amend, which also contains her response to the defendants’ motions to dismiss, this court will evaluate seriatim the viability of each of the claims asserted by Willing in her September 26, 1995 complaint and her “proposed” amendments torthat complaint under the standard of review for a 12(b)(6) motion. Federal Rule of Civil Procedure 12(b)(6) authorizes the district courts to dismiss any complaint which fails “to state a claim upon which relief can be granted.” Rule 12(b)(6) affords a defendant an opportunity to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. Under this standard, a complaint should be dismissed only where it appears that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993). In applying this standard, the court must presume all factual allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. Id. The court need not, however, accord the presumption of truthfulness to any legal conclusions, opinions or deductions, even if they are couched as factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 629 (9th Cir.1981); Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 432 (7th Cir.1978); Sexton v."
},
{
"docid": "2640114",
"title": "",
"text": "Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). The court need not, however, accord the presumption of truthfulness to any legal conclusion, opinions or deductions, even if they are couched as factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 629 (9th Cir.1981); Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 432 (7th Cir.1978); Sexton v. Barry, 233 F.2d 220, 223 (6th Cir.1956). Dismissal for failure to state a claim is disfavored: [A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See also Cameron v. Seitz, 38 F.3d 264, 270 (6th Cir.1994) (stating that a motion to dismiss should be denied unless “it is clear that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief’). 3. Analysis a. Control person liability Persons or entities can be held secondarily liable for violations of the securities laws if they are “control persons” with respect to the primary violator. To state a claim for control person liability in the Sixth Circuit, a plaintiff must plead that the alleged control person 1) actually participated in the operations of the primary defendant in general, and 2) possessed the power to control the specific transaction or activity that constitutes the primary violation. See Sanders Confectionery Prod., Inc. v. Heller Fin., Inc., 973 F.2d 474, 486 (6th Cir.1992). Consistent with its position in its prior motion to dismiss, DWR does not really contest that it is a control person with respect to Turner. Turner was an authorized representative of DWR. Moreover, plaintiffs have clearly pleaded facts sufficient to support a finding of control person liability, namely that DWR knew or should have known for a period of years that its representative, Turner, was involved in a fraudulent scheme and that Turner was operating the scheme from DWR offices. Accordingly, DWR’s opposition to"
},
{
"docid": "12434145",
"title": "",
"text": "Dismiss Tectum moves to dismiss Plaintiffs counterclaims filed in response to its counterclaim against Plaintiff. In particular, Tectum seeks dismissal of Plaintiffs claims of retaliation under Title VII and Chapter 4112, abuse of process, and spoliation of evidence. Standard of Review A motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) “should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). All well-pleaded allegations must be taken as true and be construed most favorably toward the non-movant. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).; Mayer v. Mylod, 988 F.2d 635, 637 (6th Cir.1993). While a court may not grant a Rule 12(b)(6) motion based on disbelief of a complaint’s factual allegations, Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir.1990), the court “need not accept as true legal conclusions or unwarranted factual inferences.” Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). Consequently, a complaint will not be dismissed pursuant to Rule 12(b)(6) unless there is no law to support the claims made, the facts alleged are insufficient to state a claim, or there is an insurmountable bar on the face of the complaint. If matter outside the pleadings “are presented to and not excluded by the court,” Rule 12(b)(6) provides that the motion is to be treated as one for summary judgment under Rule 56 and “all parties shall be given reasonable opportunity to present all material pertinent to such motion by Rule 56.” Fed.R.Civ.P. 12(b)(6). Application A. Plaintiff’s Retaliation Claim In response to Defendant Tectum’s counterclaim for tortious interference with business relationship, Plaintiff brings a claim for retaliation. Plaintiff alleges that if she “had not filed a discrimination/retali ation/employment law claim against Tec-tum, Tectum would never have brought this claim against Plaintiff.” (Doc. # 72 at ¶ 2). Plaintiff further alleges that Tectum has filed its counterclaim to harass Plaintiff and"
},
{
"docid": "9773294",
"title": "",
"text": "Amended Complaint is dismissed as against OTS pursuant to Rule 12(b)(1). C. The Individual Defendants’ Motion As indicated, the Individual Defendants move for dismissal of the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(5) and 12(b)(6). 1. Counts I-IV: Rule 12(b)(6) Because granting a motion under Federal Rule of Civil Procedure 12(b)(6) can result in a dismissal at an early stage of the plaintiffs ease, all allegations of the plaintiff must be'taken as true and all reasonable factual inferences drawn in her favor. Gomez v. Toledo, 446 U.S. 635, 636, 100 S.Ct. 1920, 1921-22, 64 L.Ed.2d 572 (1980); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Unger v. National Residents Matching Program, 928 F.2d 1392, 1395 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.1990); Melikian v. Corradetti, 791 F.2d 274, 277 (3d Cir.1986). Nevertheless, legal conclusions made in the guise of factual allegations are given no presumption of truthfulness. See Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944-45, 92 L.Ed.2d 209 (1986); Haase v. Webster, 807 F.2d 208, 215 (D.C.Cir.1986); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); Western Mining Council v. Watt, 643 F.2d 618, 626 (9th Cir.), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981). A court may dismiss a complaint for failure to state a claim where it appears beyond doubt that no relief could be granted under any set of facts which could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Unger, 928 F.2d at 1395; Markowitz, 906 F.2d at 103; Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988). However, “a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley,"
},
{
"docid": "3005994",
"title": "",
"text": "bond. (Id. at ¶ 45). DISCUSSION Fed.R.Civ.P. 12(b)(6) requires the court to accept as true all factual allegations outlined in the complaint with all reasonable inferences made in favor of the non-moving party. See generally Miree v. DeKalb County, 433 U.S. 25, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977). Legal conclusions, deductions or opinions, however, are not given a presumption of truthfulness. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981); see Bryan v. Stillwater Board of Realtors, 578 F.2d 1319, 1321 (10th Cir. 1977) (discussing procedure relevant to a motion to dismiss); Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429 (7th Cir.1978) (stating standard relative to motion to dismiss under Fed.R.Civ.P. 12(b)(6)). The court may not dismiss the complaint unless it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam), reh’g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). 1. Motion of Defendant Arthur Morgan, Jr. to Dismiss Even assuming the truth of the allegations contained in the plaintiffs’ complaint, Morgan submits that the plaintiffs’ complaint should be dismissed for failure to specifically state facts in support of a civil rights violation. (Docket Entry # 15, pp. 7-8). Morgan contends that although the plaintiff may have a constitutional claim against the Stoughton police officers, the facts, as pleaded, do not involve any unconstitutional activity by defendant Morgan. (Id. at 8). Defendant emphasizes the fact that a Stoughton Police officer, not Morgan, arrested Gross. Morgan further submits that he did all he could under the circumstances by identifying Gross as a Boston Police Officer prior to his arrest. The basis of plaintiffs’ civil rights claim is that the defendant, Morgan, was an essential causal link to the physical injuries and constitutional rights violations suffered by"
},
{
"docid": "7866956",
"title": "",
"text": "can be granted.” Rule 12(b)(6) affords the individual defendants in this case an opportunity to test whether, as a matter of law, the plaintiff is entitled to legal relief on his complaint even if everything alleged in the complaint is true. In applying the standards under Rule 12(b)(6), the court must presume all well- pleaded factual allegations in the complaint to be true and draw all reasonable inferences from those allegations in favor of the non-moving party. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993); Miller v. Currie, 50 F.3d 373, 377 (6th Cir.1995). The court need not, however, accord the presumption of truthfulness to any legal conclusion, opinions or deductions, even if they are couched as factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 629 (9th Cir.1981); Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 432 (7th Cir.1978); Sexton v. Barry, 233 F.2d 220, 223 (6th Cir.1956). Dismissal for failure to state a claim is disfavored: [A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See also Cameron v. Seitz, 38 F.3d 264, 270 (6th Cir.1994) (stating that a motion to dismiss should be denied unless “it is clear that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief’). If, on a motion pursuant to Rule 12(b)(6); matters outside the pleadings are presented to and not excluded by the court, “the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.... ” Fed.R.Civ.P. 12(b). 2. Standard for summary judgment pursuant to Rule 56 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to"
},
{
"docid": "15272649",
"title": "",
"text": "until March 28, 2002, when this Court granted defendant’s preliminary injunction motion. (Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 192 F.Supp.2d 321 (D.N.J.2002).) . After plaintiff Video Pipeline was granted leave to amend its complaint on June 11, 2001, and defendant BVHE thereafter filed its amended answer and counterclaims. Plaintiff filed this motion to dismiss the amended counterclaims, asserting that defendant BVHE has faded to state a claim for certain federal and state law claims, and that defendant’s state law claims are preempted by the federal Copyright Act. DISCUSSION I. Motion to Dismiss Standard, The defendants have moved to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P. A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted does not attack the merits of the case, but merely tests the legal sufficiency of the Complaint. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996). When considering a Rule 12(b)(6) motion, the reviewing court must accept as true all well-pleaded allegations in the Complaint and view them in the light most favorable to the plaintiff. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994); Palladino ex rel. U.S. v. VNA of Southern New Jersey, Inc., 68 F.Supp.2d 455 (D.N.J.1999). Here, in a motion to dismiss counterclaims, the allegations must be viewed in the light most favorable to defendant, the non-movant. In considering the motion, a district court must also accept as true any and all reasonable inferences derived from those facts. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir.1994); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir.1991). A court may not dismiss the Complaint “unless it appears beyond doubt that the [non-movant] can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Therefore, in deciding a motion to dismiss, a court should look to the face of the complaint and decide whether, taking all of"
},
{
"docid": "10467154",
"title": "",
"text": "Rule of Civil Procedure 12(b)(6) authorizes the district courts to dismiss any complaint which fails “to state a claim upon which relief can be granted.” Rule 12(b)(6) affords a defendant an opportunity to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. Under this standard, a complaint should be dismissed only where it appears that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993). In applying this standard, the court must presume all factual allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. Id. The court need not, however, accord the presumption of truthfulness to any legal conclusions, opinions or deductions, even if they are couched as factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 629 (9th Cir.1981); Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 432 (7th Cir.1978); Sexton v. Barry, 233 F.2d 220, 223 (6th Cir.1956). Accordingly, to determine whether a complaint should be dismissed for failure to state a claim under Rule 12(b)(6), this court must examine the applicable substantive law and the facts alleged in the plaintiffs complaint. Upon review of the submissions and the applicable authorities, this court has concluded that dismissal of Willing’s complaint under Rule 12(b)(6) is warranted because that complaint fails to state any cognizable claims against any of the defendants. Willing’s claim under 18 U.S.C. § 241 should be dismissed, because the law is clear that § 241 does not provide a basis for a civil liability. Watson v. Devlin, 167 F.Supp. 638, 640 (E.D.Mich.1958), aff'd 268 F.2d 211 (6th Cir.1959); Agnew v. Compton, 239 F.2d 226, 230 (9th Cir.1956), cert den. 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910 (1957). Entitled “Conspiracy Against Rights,” section 241 provides for criminal penalties for conspiracies “to injure, oppress, threaten, or intimidate any inhabitant of any State, Territory, or District in the free exercise or enjoyment of any right"
},
{
"docid": "16277835",
"title": "",
"text": "Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the district courts to dismiss any claim for relief that fails “to state a claim upon which relief can be granted.” Rule 12(b)(6) affords a defendant an opportunity to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. In general, in applying the standards under Rule’ 12(b)(6), the Court must presume all well-pleaded factual allegations in the complaint to be true and draw all reasonable inferences from those allegations in favor of the non-moving party. See Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993). The requirement of drawing inferences in favor of the plaintiff is unaffected by the Private Securities Litigation Reform Act of 1995 (“PSLRA” or “Reform Act”), Pub.L. No. 104-67 (codified at 15 U.S.C. § 78u-4 & -5) (1995). While Congress strengthened the pleading standard for securities fraud, as discussed in more detail below, “the Reform Act would hardly serve its purpose to protect investors and to maintain confidence in the securities markets, were it to become a choke-point for meritorious claims.” Helwig v. Vencor, Inc., 251 F.3d 540, 554 (6th Cir.2001) (en banc) (quotations and citations omitted). The Court will not, however, accord the presumption of truthfulness to any. legal conclusion, opinion or deduction, even if it is couched as a factual allegation. Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). The Court will not dismiss a claim for relief “for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Although the pleading standard is liberal, bald assertions and conclusions of law will not enable a complaint to survive a motion pursuant to Rule 12(b)(6). Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.1996). Ill ANALYSIS In the recent opinion in Helwig v. Vencor, Inc., 251 F.3d 540 (6th Cir.2001) (en banc), the Sixth"
},
{
"docid": "5772666",
"title": "",
"text": "ORDER RE: MOTION TO DISMISS COUNTERCLAIM CONTI, District Judge. I. BACKGROUND AND INTRODUCTION This matter is before the court on plaintiffs motion to dismiss a counterclaim. Plaintiff, MAI Systems Corporation (“MAI”), is a computer hardware and software manufacturer. Defendant, UIPS, is an independent service contractor engaged in the business of servicing and maintaining computers manufactured by MAI and others. Plaintiff alleges that UIPS has infringed its valid copyright in diagnostic software allegedly used by defendants in the unlicensed servicing of MAI computers. Defendant has asserted a compulsory counter-claim arising under California’s broad unfair competition statute set forth in Business and Professions Code section 17200 et seq. The gravamen of defendants’ counterclaim is that MAI has deceived its customers through misleading contractual language concerning its policies for licensing diagnostic software to independent service organizations. This matter is before the court on MAI’s motion to dismiss defendant’s counterclaim. Having reviewed the arguments of counsel, the court dismisses defendant’s state law counterclaim for lack of standing. II. LEGAL STANDARD A. Dismissal For Failure To State A Claim A complaint should not be dismissed under F.R.C.P. Rule 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Wool v. Tandem Computers Inc., 818 F.2d 1433, 1439 (9th Cir.1987). A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory or; (2) insufficient facts under a cognizable theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). When reviewing a motion to dismiss, all the allegations of-material fact are taken as true and construed in the light most favorable to the non-moving party. Abramson v. Brownstein, 897 F.2d 389 (9th Cir.1990). However, legal conclusions, deductions or opinions couched as factual allegations are not entitled to a presumption of truthfulness. Jones v. Comm. Redevelopment Agency, 733 F.2d 646 (9th Cir.1984). Failure to"
},
{
"docid": "3263422",
"title": "",
"text": "that fails “to state a claim upon which relief can be granted.” Rule 12(b)(6) affords a defendant an opportunity to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. In applying the standards under Rule 12(b)(6), the Court must presume all well-pleaded factual allegations in the complaint to.be true and draw all reasonable inferences from those allegations in favor of the non-moving party. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993). The Court will not, however, accord the presumption of truthfulness to any legal conclusion, opinion or deduction, even if it is couched as a factual allegation. Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). The Court will not dismiss a cause of action “for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Although the pleading standard is liberal, bald assertions and conclusions of law will not enable a complaint to survive a motion pursuant to Rule 12(b)(6). Leeds v. Mettz, 85 F.3d 51, 53 (2d Cir.1996). Ill ANALYSIS A Voluntary-Payment Doctrine Under the doctrine of voluntary payment, “[w]here money has been voluntarily paid with full knowledge of the facts, it cannot be recovered on the ground that the payment was made under a misapprehension of the legal rights and obligations of the person paying.” Progressive Mich. Ins. Co. v. United Wis. Life Ins. Co., 84 F.Supp.2d 848, 854 (E.D.Mich.2000) (Edmunds, J.) (quoting Montgomery Ward & Co. v. Williams, 330 Mich. 275, 285, 47 N.W.2d 607 (1951)). Where the allegedly-voluntary payment was made under a mistake of fact, however, the doctrine generally does not apply. Id. (citing Kern v. City of Flint, 125 Mich.App. 24, 335 N.W.2d 708 (1983)). Here, the doctrine of voluntary payment does not justify dismissal of Plaintiffs’ case. This is so because Plaintiffs allege that Defendants over-billed them, and that Plaintiffs mistakenly"
},
{
"docid": "15032784",
"title": "",
"text": "Subsequently, this court issued a procedural order directing the plaintiffs to resubmit their opposition to the motion to dismiss in accordance with the Local Rules of this Court. That submission was received by this court on March 18, 1991, and the court now addresses the merits of the motion to dismiss. The defendants have asserted the instant motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). The defendants allege: (1) neither the City of Boston Police Department nor the Internal Affairs Department of the Boston Police Department exist as an independent legal entity; (2) local government cannot be held liable pursuant to 42 U.S.C. § 1983 without a finding that the alleged injurious conduct was the result of an official policy or custom; and (3) plaintiffs have failed to state a claim for relief against Francis Roache (“Roache”) in his official capacity for the same reasons that they have failed to establish a claim against the city; and (4) the plaintiffs have failed to set forth a claim against Roache individually, as they have not alleged that Roache’s own action is the cause of the claimed violation and injury. (Docket Entry # 10). Fed.R.Civ.P. 12(b)(6) requires the court to accept as true all factual allegations outlined in the complaint with all reasonable inferences made in favor of the non-moving party. Miree v. Delkab County, 433 U.S. 25, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990). Legal conclusions, deductions or opinions, however, are not given a presumption of truthfulness. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981); see Bryan v. Stillwater Board of Realtors, 578 F.2d 1319, 1321 (10th Cir.1977) (discussing procedure relevant to a motion to dismiss); Mitchell v. Archibald and Kendall, Inc., 573 F.2d 429 (7th Cir.1978) (stating standard relative to motion to dismiss). The court may not dismiss the complaint unless it appears “beyond doubt that the plaintiff can prove no set of facts in"
},
{
"docid": "17587071",
"title": "",
"text": "claims in Plaintiffs’ Complaint fail to state a claim upon which relief can be granted. A motion under Rule 12(b)(6) tests the “sufficiency of [a] complaint.” Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A court must examine the plaintiffs allegations and determine whether, as a matter of law, “the plaintiff is entitled to legal relief even if everything alleged in the complaint is true.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993). “[A] court considering a motion to dismiss under Rule 12(b)(6) ‘must accept all well-pleaded factual allegations of the complaint as true and construe the complaint in the light most favorable to the plaintiff.’ ” Benzon v. Morgan Stanley Distribs., Inc., 420 F.3d 598, 605 (6th Cir.2005) (quoting Inge v. Rock. Fin. Corp., 281 F.3d 613, 619 (6th Cir.2002) (citing Turker v. Ohio Dep’t of Rehab. & Corr., 157 F.3d 453, 456 (6th Cir.1998))). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the United States Supreme Court revisited the standards that govern Rule 12(b)(6) motions. In doing so, the Court rejected “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 550 U.S. at 561, 127 S.Ct. 1955 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The Court explained, Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests[.]” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the “grounds” of his “entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]"
}
] |
532060 | "are undisputed and the existence or amount of liability depends solely upon a construction of the policy, the question presented is one of law for the court to decide.”). . Accord Chapman & Cole v. Itel Container Int'l B.V., 865 F.2d 676, 681-82 (5th Cir.) (court correctly disregarded industry usage of term when it was expressly defined in policy), cert. denied, — U.S.-, 110 S.Ct. 201, 107 L.Ed.2d 155 (1989); Enterprise Tools, Inc. v. Export-Import Bank, 799 F.2d 437, 439 (8th Cir.1986) (""resort to extrinsic evidence is appropriate only to resolve ambiguities” and ""where a term is defined in the policy, the court is bound by the policy definition""), cert. denied, 480 U.S. 931, 107 S.Ct. 1569, 94 L.Ed.2d 761 (1987); REDACTED . resort to judicial construction is had only when an ambiguity exists”); Michigan Chem. Corp. v. American Home Assurance Co., 728 F.2d 374, 377 (6th Cir.1984) (when plain and unambiguous contract terms expressed, “language must be given its ordinary and common meaning without further construction”); Pearce v. General Am. Life Ins. Co., 637 F.2d 536, 539 (8th Cir.1980) (""As a general rule, plain and unambiguous language will be given its ordinary meaning and effect; the need to resort to construction arises only when an ambiguity exists.... But where a term is defined in the policy, the court must look to there and nowhere else_”); General Accident Fire &" | [
{
"docid": "16563979",
"title": "",
"text": "120, 122 (8th Cir.1985); Kansas State Bank v. Citizens Bank, 737 F.2d 1490, 1496 (8th Cir.1984); Nelson By Wharton v. Missouri Division of Family Services, 706 F.2d 276, 278 (8th Cir.1983). Although the majority of courts that have considered a similar factual situation have held contrary to the district court’s holding, some support exists for the literal policy interpretation taken by the district court here. See, e.g., Beck v. Downey, 191 F.2d 150, 152 (9th Cir.1951), vacated and remanded, 343 U.S. 912, 72 S.Ct. 646, 96 L.Ed. 1328 (1952), readopted in 198 F.2d 626 (9th Cir.), cert. denied, 344 U.S. 875, 73 S.Ct. 170, 97 L.Ed. 678 (1952); Bullock v. Expressmen’s Mutual Life Insurance Co., 234 N.C. 254, 257-59, 67 S.E.2d 71, 74-75 (1951). Further, the district court reasonably based its decision on the rule repeatedly stated by Missouri courts that unambiguous language in an insurance contract must be given its plain meaning, and that resort to judicial construction is had only when an ambiguity exists. See, e.g., Howard v. Russell Stover Candies, Inc., 649 F.2d 620, 623 (8th Cir.1981) (applying Missouri law) (quoting Kay v. Metropolitan Life Insurance Co., 548 S.W.2d 629, 631 (Mo.Ct.App.1977)); M.F.A. Mutual Insurance Co. v. American Family Mutual Insurance Co., 654 S.W.2d 230, 232 (Mo.Ct.App.1983); Kyte v. Fireman’s Fund American Insurance Cos., 549 S.W.2d 366, 367 (Mo.Ct.App.1977). The language of the beneficiary clause is not patently ambiguous, and the district court therefore held it was without the authority to construe the word “living,” in the phrase “provided none of the First Beneficiaries are living at the death of the Insured,” to mean “living and not otherwise disqualified.” The court then turned to the final section of the beneficiary clause and, noting that the term “surviving beneficiary” differs significantly from the language applicable to the right of the second beneficiary, concluded that although Helen Martin was living she had not survived as a beneficiary. The court therefore awarded the insurance proceeds to Voirol as administratrix of Ronald Martin’s estate. After careful consideration of the district court’s opinion, we cannot conclude that the court erred in reaching"
}
] | [
{
"docid": "14048884",
"title": "",
"text": "in determining whether, as a matter of law, two plausible interpretations exist in the manner necessary to give rise to the existence of an ambiguity. Key v. Allstate Ins. Co., 90 F.3d 1546, 1548-49 (11th Cir.1996)(Florida law)(emphasis added)(\"Under ordinary principals of contract interpretation, a court must first examine the natural and plain meaning of a policy’s language.... [U]nless and ambiguity exists, a court should not resort to outside evidence or the complex rules of construction to construe the contract. ... Moreover, in determining whether a contract is ambiguous, the words should be given their natural, ordinary meaning, ... and ambiguity does not exist simply because a contract requires interpretation or fails to define a term.... If, on the other hand, a court determines that the terms of an insurance contract are ambiguous, or otherwise not susceptible to a reasonable construction, a court may look beyond the contractual language to discern the intent of the parties in making the agreement. In general, ambiguities in contracts are construed against their drafters.”); Press Mach. Corp. v. Smith R.P.M. Corp., 727 F.2d 781, 784-85 (8th Cir.1984)(Missouri law)(emphasis added)('Tn determining whether a contract is ambiguous, the court must consider the whole instrument and the natural and ordinary meaning of the language .... [T]he court’s role is to determine the intention as manifested ... by the document. In that inquiry, however, the court is justified in considering more than the mere words of the contract. The surrounding circumstances at the time of contracting and the positions and actions of the parties are relevant to the judicial interpretation of the contract.”). Obviously, the natural and ordinary meaning of language, reasonable construction of a contract, surrounding circumstances, and positions and actions of the parties are issues that cannot be weighed in a vacuum. See Bunnell Med. Clinic, P.A. v. Barrera, 419 So.2d 681, 683 (Fla.Dist.Ct.App.1982)(empha-sis added)(\"A latent ambiguity has been defined as one where the language in a contract is clear and intelligible and suggests a single meaning, but some extrinsic fact or extraneous evidence creates a need for interpretation or a choice between two possible meanings ..."
},
{
"docid": "16803779",
"title": "",
"text": "Ambiguity exists in an insurance policy only when its terms make the policy reasonably susceptible to different constructions and interpretations, one resulting in coverage and one resulting in exclusion. See Thompson v. Amoco Oil Co., 903 F.2d 1118, 1120 (7th Cir.1990); Towne Realty, 854 F.2d at 1267; Gulf Tampa Drydock Co. v. Great Atlantic Ins. Co., 757 F.2d 1172, 1174-75 (11th Cir.1985); Fabrica Italiana Lavorazione Materie Organiche, S.A.S. v. Kaiser Aluminum & Chemical Corp., 684 F.2d 776, 780 (11th Cir.1982); see also Papago Tribal Utility Authority v. FERC, 723 F.2d 950, 955 (D.C.Cir.1983), cert. denied, 467 U.S. 1241, 104 S.Ct. 3511, 82 L.Ed.2d 820 (1984). The court may not create ambiguity where none exists. Simmons Refining Co. v. Royal-Globe Ins. Co., 543 F.2d 1195, 1197 (7th Cir.1976). Significantly, neither the mere absence of a policy definition nor the presence of a dispute as to meaning of the provision necessarily renders the policy or term ambiguous. Orkin Exterminating Co. v. FTC, 849 F.2d 1354, 1360 (11th Cir.1988), cert. denied, 488 U.S. 1041, 109 S.Ct. 865, 102 L.Ed.2d 989 (1989); Keyser v. Conn. Gen. Life Ins. Co., 617 F.Supp. 1406, 1410 (N.D.Ill.1985). If the language found in the policy is not ambiguous or otherwise susceptible of more than one meaning, the court’s duty is to apply the plain meaning of the words and phrases used to the facts before it. The court is Without authority to rewrite the policy or add meaning to it that is not there. National Union Fire Ins. Co. of Penn. v. Carib Aviation, Inc., 759 F.2d 873, 876 (11th Cir.1985); see also FDIC v. W.R. Grace & Co., 877 F.2d 614, 620-21 (7th Cir.1989) (“the ‘four corners’ rule, which excludes extrinsic evidence if the contract is clear ‘on its face’ ” shows that there “is ancient wisdom as well as ancient prejudice”), cert. denied, — U.S. -, 110 S.Ct. 1524, 108 L.Ed.2d 764 (1990); Orkin, 849 F.2d at 1362 (where party seeks to prove latent ambiguity, interpretation urged must be reasonable and resolve actual ambiguity, not create one). Courts determine whether a party’s construction of a term"
},
{
"docid": "14024717",
"title": "",
"text": "point of exit. The extent to which they were subgrade, whether 6, 8, or 40 inches, is immaterial under the policy. The only question is whether they were subgrade or at ground level. Indeed, the appellants do not contend that the floors of the lower levels of their houses were not subgrade in the rear or attempt to explain why a floor that is 6 to 8 inches below ground on one side is not “subgrade” on that side. Instead, they argue that the basement exclusion of the policy was not intended to cover so-called “walkout” basements, which have a direct exit to the yard. Nothing in the policy language, however, even refers to or uses the word “walkout,” which appears to be a term used in the real estate business to describe a home of that type. Although the appellants argue that walkouts generally are not considered basements, the question is whether the appellants’ walkouts contain basements under the policy definition of the term. “[W]here a term is defined in the policy, the court is bound by the policy definition.” Enterprise Tools, Inc. v. Export-Import Bank, 799 F.2d 437, 439 (8th Cir.1986), cert. denied, 480 U.S. 931, 107 S.Ct. 1569, 94 L.Ed.2d 761 (1987) (citing Pearce v. General American Life Ins. Co., 637 F.2d 536, 539 (8th Cir.1980)). If the walkout side of the basement is subground, it is a basement under the policy. The appellants refer to a footnote in a lengthy report from the General Accounting Office to two members of Congress which stated: “The flood insurance program’s definition of a basement is an area of a building having its floor below ground on all sides. FIA [Federal Insurance Administration] does not consider ‘walk out’ basements as basements for insurance purposes.” Neither this statement nor anything else upon which the appellants rely warrants interpreting the unambiguous policy language defining and limiting the coverage of “basements” to except walkout basements. The unambiguous language of the basement exclusion is consistent with the principle that insurance policies should be as clear as possible, so that insureds will know the precise"
},
{
"docid": "22948130",
"title": "",
"text": "length by the panel majority, 811 F.2d at 1187-89, and the panel dissent, id. at 1193- 95, and in fact was the only point of significant disagreement between the majority and dissenting opinions. Moreover, the broad issue of the availability of liability insurance coverage under standard-form CGL policies for the costs of cleaning up hazardous waste sites is a question of substantial importance not only to liability insurers and their insureds, but to the public as well. This case involves the construction of standard-form CGL insurance policies. “An insuring obligation is a contract, and coverage exists only if assumed by the terms of the policy.” Aetna Casualty & Surety Co. v. Hanna, 224 F.2d 499, 503 (5th Cir.1955) (Hanna). The district court correctly applied the law of Missouri, the forum state. See Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Missouri has adopted the most significant relationship test set forth in the Restatement (Second) Conflict of Laws § 188 (1971). See American Institute of Marketing Systems, Inc. v. Brooks, 469 S.W.2d 932 (Mo.Ct.App.1971) (contracts), and is the state with the most significant contacts with the parties and the CGL policies. See, e.g., Havenfield Corp. v. H & R Block, Inc., 509 F.2d 1263, 1267-68 (8th Cir.), cert. denied, 421 U.S. 999, 95 S.Ct. 2395, 44 L.Ed.2d 665 (1975). Under Missouri law [t]he rules of construction applicable to insurance contracts require that the language used be given its plain meaning. If the language is unambiguous the policy must be enforced according to such language. If the language is ambiguous it will be construed against the insurer. Language is ambiguous if it is reasonably open to different constructions; and language used will be viewed in light of “the meaning that would ordinarily be understood by the lay[person] who bought and paid for the policy.” Robin v. Blue Cross Hospital Service, Inc., 637 S.W.2d 695, 698 (Mo.1982) (banc) (citations omitted); see also Pearce v. General American Life Insurance Co., 637 F.2d 536, 539 (8th Cir.1980) (Missouri law); Bellamy v. Pacific Mutual Life Insurance Co.,"
},
{
"docid": "22845677",
"title": "",
"text": "370-71, 99 L.Ed. 337 (1955); Ionian Shipping Co. v. British Law Ins. Co., 426 F.2d 186, 190 (2d Cir.1970). The parties do not dispute that to the extent that federal admiralty rules do not exist, the interpretation of the policy is governed by Illinois law. The starting point in interpreting an insurance policy is to determine whether the policy terms are ambiguous. As a general rule, plain or unambiguous language will be given its ordinary meaning and effect, and the need to resort to rules of construction arises only when an ambiguity exists. National Fidelity Life Ins. Co. v. Karaganis, 811 F.2d 357, 361 (7th Cir.1987); Chicago Bd. Options Exch., Inc. v. Connecticut Gen. Life Ins. Co., 713 F.2d 254, 257-58 (7th Cir.1983). Courts may not create an ambiguity where none exists. Simmons Refining Co. v. Royal-Globe Ins. Co., 543 F.2d 1195, 1197 (7th Cir.1976); State Farm Mut. Auto. Ins. Co. v. Berke, 123 Ill.App.2d 455, 258 N.E.2d 838, 841 (1970). If an insurance contract is ambiguous it will generally be construed against the insurer who drafted it in order to promote coverage for losses to which the policy relates. Karaganis, 811 F.2d at 361; FSC Paper Corp. v. Sun Ins. Co. of N.Y., 744 F.2d 1279, 1282 (7th Cir.1984). This principle applies to all types of insurance policies including maritime policies. Kalmbach, Inc. v. Insurance Co. of Pa;, 529 F.2d 552, 555 (9th Cir.1976) (citing Illinois cases). The rule that insurance policies are to be construed in favor of the insured is most rigorously applied in construing the meaning of exclusions incorporated into a policy of insurance or provisions seeking to narrow the insurer’s liability. Sears, Roebuck & Co. v. Reliance Ins. Co., 654 F.2d 494, 499 (7th Cir.1981). Accordingly, we turn first to the question of whether Ingersoll’s policy is ambiguous. Fireman’s Fund’s argument that the policy provisions are unambiguous has surface appeal. Clause 17(a) is encaptioned “UNDER DECK shipments” and clause 17(b) is encaptioned “ON DECK shipments.” At first glance, these captions would seem to indicate that it is the actual, physical place of stowage which governs"
},
{
"docid": "14024718",
"title": "",
"text": "is bound by the policy definition.” Enterprise Tools, Inc. v. Export-Import Bank, 799 F.2d 437, 439 (8th Cir.1986), cert. denied, 480 U.S. 931, 107 S.Ct. 1569, 94 L.Ed.2d 761 (1987) (citing Pearce v. General American Life Ins. Co., 637 F.2d 536, 539 (8th Cir.1980)). If the walkout side of the basement is subground, it is a basement under the policy. The appellants refer to a footnote in a lengthy report from the General Accounting Office to two members of Congress which stated: “The flood insurance program’s definition of a basement is an area of a building having its floor below ground on all sides. FIA [Federal Insurance Administration] does not consider ‘walk out’ basements as basements for insurance purposes.” Neither this statement nor anything else upon which the appellants rely warrants interpreting the unambiguous policy language defining and limiting the coverage of “basements” to except walkout basements. The unambiguous language of the basement exclusion is consistent with the principle that insurance policies should be as clear as possible, so that insureds will know the precise scope of their coverage and insurers will know the precise extent of their liability. See generally 44 C.J.S. Insurance § 255 (1945). Under the basement exclusion, only limited coverage is provided for the lower level of a house that is subgrade on all sides. Although the appellants stress that only one step upward is required to get from their basements to the yard, on what reasonable basis should coverage be made to depend upon the number of steps that separated the basement level from the yard? Under the appellants’ theory, would a walkout basement that was 6 steps below ground still not be a basement? The Management agency was justified in drafting the exception for flood damage to “basements” in terms of whether the area involved was subgrade on all sides. B. The appellants contend that, as construed by the district court and the Management Agency, the basement exclusion is unconscionable and therefore should not be enforced. Even assuming arguendo that the doctrine of unconscionability properly may be applied to a federal insurance policy, the"
},
{
"docid": "22948131",
"title": "",
"text": "Inc. v. Brooks, 469 S.W.2d 932 (Mo.Ct.App.1971) (contracts), and is the state with the most significant contacts with the parties and the CGL policies. See, e.g., Havenfield Corp. v. H & R Block, Inc., 509 F.2d 1263, 1267-68 (8th Cir.), cert. denied, 421 U.S. 999, 95 S.Ct. 2395, 44 L.Ed.2d 665 (1975). Under Missouri law [t]he rules of construction applicable to insurance contracts require that the language used be given its plain meaning. If the language is unambiguous the policy must be enforced according to such language. If the language is ambiguous it will be construed against the insurer. Language is ambiguous if it is reasonably open to different constructions; and language used will be viewed in light of “the meaning that would ordinarily be understood by the lay[person] who bought and paid for the policy.” Robin v. Blue Cross Hospital Service, Inc., 637 S.W.2d 695, 698 (Mo.1982) (banc) (citations omitted); see also Pearce v. General American Life Insurance Co., 637 F.2d 536, 539 (8th Cir.1980) (Missouri law); Bellamy v. Pacific Mutual Life Insurance Co., 651 S.W.2d 490, 495-96 (Mo.1983) (banc). Case law on this issue is sharply divided. Compare Maryland Casualty Co. v. Armco, Inc., 822 F.2d at 1352-55 (under Maryland law, holding “damages” does not cover cleanup costs; citing cases), with New Castle County v. Hartford Accident & Indemnity Co., 673 F.Supp. 1359, 1365-67 (D.Del.1987) (under Delaware law, holding “damages” covers cleanup costs; citing cases). For the reasons discussed below, we hold that the term “damages” is not ambiguous in the insurance context and that the plain meaning of the term “damages” used in the CGL policies refers to legal damages and does not cover cleanup costs. Viewed outside the insurance context, the term “damages” is ambiguous: it is reasonably open to different constructions. Webster’s Third New International Dictionary 571 (1971) defines “damages” as “the estimated reparation in money for detriment or injury sustained: compensation or satisfaction imposed by law for wrong or injury caused by a violation of a legal right.” The dictionary definition does not distinguish between legal damages and equitable monetary relief. E.g., New Castle"
},
{
"docid": "9630357",
"title": "",
"text": ". See also Reytblatt v. Denton, 812 F.2d 1042, 1043 (7th Cir.1987) (purported dismissal of case on form prescribed for judgment in a civil case failing to indicate both the ruling and the disposition not appealable); Rappaport v. United States, 557 F.2d 605, 606 (7th Cir.1977) (minute order granting motion for summary judgment but not explicitly declaring the case over not appealable). See generally Eakin v. Continental Illinois Natl Bank & Trust Co., 875 F.2d 114, 118 (7th Cir.1989) (“Judicial opinions do not create obligations; judgments do. In the event of a conflict between the opinion and the judgment, the judgment controls.”). . Cf. Gerritsen v. De la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir.1987) (\"‘If it appears that the district court intended the dismissal to dispose of the action, it may be considered final and appealable.’\") (quoting Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984)). . Accord Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 134 (1st Cir.1984) (\"Generally, where the facts upon which liability is claimed or denied under an insurance policy are undisputed and the existence or amount of liability depends solely upon a construction of the policy, the question presented is one of law for the court to decide.”). . Accord Chapman & Cole v. Itel Container Int'l B.V., 865 F.2d 676, 681-82 (5th Cir.) (court correctly disregarded industry usage of term when it was expressly defined in policy), cert. denied, — U.S.-, 110 S.Ct. 201, 107 L.Ed.2d 155 (1989); Enterprise Tools, Inc. v. Export-Import Bank, 799 F.2d 437, 439 (8th Cir.1986) (\"resort to extrinsic evidence is appropriate only to resolve ambiguities” and \"where a term is defined in the policy, the court is bound by the policy definition\"), cert. denied, 480 U.S. 931, 107 S.Ct. 1569, 94 L.Ed.2d 761 (1987); Webb v. Voirol, 773 F.2d 208, 212 (8th Cir.1985) (\"unambiguous language in an insurance contract must be given its plain meaning, ... resort to judicial construction is had only when an ambiguity exists”); Michigan Chem. Corp. v. American Home Assurance Co., 728 F.2d 374, 377 (6th Cir.1984) (when plain and unambiguous"
},
{
"docid": "23260098",
"title": "",
"text": "review the questions raised by the parties. See id.; Turbo Trucking Co. v. Those Underwriters at Lloyd’s London, 776 F.2d 527, 529 (5th Cir.1985). Moreover, because the parties chose our federal forum in which to litigate their diversity suit, we are bound by the principles of Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), to settle this dispute as would the Texas courts — by applying Texas substantive law. In this case, summary judgment raised only the question of how properly to construe the exclusion provision of the insurance policy. In Texas, “[i]t is a fundamental rule of law that insurance policies are contracts and as such are controlled by rules of construction which are applicable to contracts generally.” Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 665 (Tex.1987). Usually, the first question faced in contract interpretation is whether the contract terms in dispute are ambiguous. And the determination of whether terms are ambiguous is, in Texas, a question of law; it is only the resolution of ambiguities through the resort to extrinsic evidence which creates a question of fact. J.B. Watkins v. Petro-Search, Inc., 689 F.2d 537, 538 (5th Cir.1982); see also Ideal Mut. Ins. Co. v. Last Days Evangelical Ass’n, 783 F.2d 1234, 1238 (5th Cir.1986). The reason for the focus on ambiguity is simple; “[wjhen terms of an insurance policy are unambiguous, they are to be given their plain, ordinary and generally accepted meaning unless the instrument itself shows that the terms have been used in a technical or different sense.” Ramsay v. Maryland Am. Gen. Ins. Co., 533 S.W.2d 344, 346 (Tex.1976). Moreover, when an unambiguous contract exists, the contract alone will be deemed to express the intention of the parties, “for it is objective, not subjective, intent that controls.” Watkins, 689 F.2d at 538 (applying Texas law). By contrast, in Texas an ambiguous contract— when the contract is an insurance policy— is tested by special rules of construction. For example, when an ambiguity exists, exceptions and limitations in insurance policies are construed against the insurer. Ranger Ins. Co."
},
{
"docid": "9602630",
"title": "",
"text": "“confirm” the earlier contract. This Court has previously discussed the general principles of contract interpretation: It is well-settled that when contractual language is clear and unambiguous, the court cannot indulge in construction or interpretation of its plain meaning. Hurt v. Leath-erby Insurance Company, 380 So.2d 432 (Fla.1980). A court may not violate the clear meaning of a contract in order to create an ambiguity. Hoffman v. Robinson, 213 So.2d 267 (Fla.App.1968). An ambiguity exists only when a word or phrase in a contract is of uncertain meaning and may be fairly understood in more ways than one and is susceptible of more than one meaning and of interpretation in opposite ways. Friedman, et al. v. Virginia Metal Products Corp., 56 So.2d 515 (Fla.1952). But, if a contract is unambiguous, the actual language used in the contract is the best evidence of the intent of the parties, and the contract terms will be given their plain meaning. Herrero v. Herrero, 528 So.2d 1286 (Fla. 2d DCA 1988). Rey, 766 F.Supp. at 1146 (S.D.Fla.1991). Moreover, the United States Court of Appeals for the Eleventh Circuit has observed: Courts may not rewrite contracts to add meaning or to create an ambiguity. State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So.2d 1245, 1248 (Fla.1986). There must be “a genuine inconsistency, uncertainty, or ambiguity in meaning [that] remains after resort to the ordinary rules of construction.” Excelsior [Ins. Co. v. Pomona Park Bar & Package Store], 369 So.2d [938] at 942 [ (Fla.1979) ]. Further, ambiguity is not invariably present when a contract requires interpretation, Weldon [v. All American Life Ins. Co.], 605 So.2d [911] at 915 [ (Fla. 2d DCA 1992) ]; Gulf Tampa Dry dock [Co. v. Great Atlantic Ins. Co.], 757 F.2d [1172] at 1175 [ (11th Cir.1985) ], and failing to define a term does not create ambiguity per se. Jefferson Ins. Co. v. Sea World, Inc., 586 So.2d 95, 97 (5th DCA 1991). Dahl-Eimers v. Mutual of Omaha Life Ins. Co., 986 F.2d 1379, 1381-82 (11th Cir.1993). In another case, the Eleventh Circuit added that “[u]nder Florida law, evidence"
},
{
"docid": "9630358",
"title": "",
"text": "an insurance policy are undisputed and the existence or amount of liability depends solely upon a construction of the policy, the question presented is one of law for the court to decide.”). . Accord Chapman & Cole v. Itel Container Int'l B.V., 865 F.2d 676, 681-82 (5th Cir.) (court correctly disregarded industry usage of term when it was expressly defined in policy), cert. denied, — U.S.-, 110 S.Ct. 201, 107 L.Ed.2d 155 (1989); Enterprise Tools, Inc. v. Export-Import Bank, 799 F.2d 437, 439 (8th Cir.1986) (\"resort to extrinsic evidence is appropriate only to resolve ambiguities” and \"where a term is defined in the policy, the court is bound by the policy definition\"), cert. denied, 480 U.S. 931, 107 S.Ct. 1569, 94 L.Ed.2d 761 (1987); Webb v. Voirol, 773 F.2d 208, 212 (8th Cir.1985) (\"unambiguous language in an insurance contract must be given its plain meaning, ... resort to judicial construction is had only when an ambiguity exists”); Michigan Chem. Corp. v. American Home Assurance Co., 728 F.2d 374, 377 (6th Cir.1984) (when plain and unambiguous contract terms expressed, “language must be given its ordinary and common meaning without further construction”); Pearce v. General Am. Life Ins. Co., 637 F.2d 536, 539 (8th Cir.1980) (\"As a general rule, plain and unambiguous language will be given its ordinary meaning and effect; the need to resort to construction arises only when an ambiguity exists.... But where a term is defined in the policy, the court must look to there and nowhere else_”); General Accident Fire & Life Assurance Corp. v. Akzona Inc., 622 F.2d 90, 93 (4th Cir.1980) (“When an insurance policy defines a term, that definition provides ‘the meaning which must be given to that term ... unless the context clearly requires otherwise.’\") (quoting Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 172 S.E.2d 518, 522 (N.C.1970)); State Farm Fire & Cos. Co. v. Hiermer, 720 F.Supp. 1310, 1314 (S.D.Ohio 1988) (\"Courts may not rewrite, through rules of construction, the unambiguous terms of an insurance contract.”), aff'd, 884 F.2d 580 (6th Cir.1989); Wolf Bros. Oil Co. v."
},
{
"docid": "11210485",
"title": "",
"text": "v. Hartford Accident & Indem. Co., 833 F.2d 32, 34 (3d Cir.1987). On cross-motions for summary judgment, the court must construe the motions independently, viewing the evidence presented by each moving party in the light most favorable to the nonmovant. Pichler v. UNITE, 542 F.3d 380, 386 (3d Cir.2008). A. Interpretation of the Traveler’s Insurance Policy Pursuant to the Travelers policy, an insured is “anyone ... while using with your permission a covered ‘auto’ you own, hire, or borrow.” Because the Travelers policy does not define the term “hire,” the Court must interpret its meaning. Under Pennsylvania law, an insurance policy must be read as a whole and construed according to the plain meaning of its terms. C.H. Heist Caribe Corp. v. Am. Home Assurance Co., 640 F.2d 479, 481 (3d Cir.1981). Words of common usage in an insurance policy are to be construed in their natural, plain, and ordinary sense, and courts may inform their understanding of such words by consulting a dictionary. Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 108 (1999). Ambiguous terms in a contract are to be construed in favor of the insured and against the insurer. Bateman v. Motorists Mut. Ins. Co., 527 Pa. 241, 590 A.2d 281, 283 (1991). Courts, however, should not read ambiguity into contracts. Madison Constr. Co., 735 A.2d at 106 (“We will not, however, distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity.”). Contractual language is ambiguous only “if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.” Hutchison v. Sunbeam Coal Co., 513 Pa. 192, 519 A.2d 385, 390 (1986). The plaintiff asserts that the Court should look to dictionaries to determine the meaning of “hire,” and that none of the definitions contain explicitly the word “control.” It also argues that the term “hire” is ambiguous because it is not defined in the Travelers policy. It should be construed against Travelers, the drafter, and not found to contain an element of control. The plaintiffs arguments"
},
{
"docid": "2527637",
"title": "",
"text": "that when Key purchased insurance from Underwriters she manifested her intent to forgo coverage under the Allstate policy. In the alternative, Allstate argues that even if coverage is determined by the four criteria discussed above, Key failed to meet conditions (2) and (4). Discussion Under ordinary principals of contract interpretation, a court must first exam ine the natural and plain meaning of a policy’s language. Dahl-Eimers v. Mutual of Omaha Life Ins. Co., 986 F.2d 1379, 1382 (11th Cir.1993). Under Florida law, if the terms of an insurance contract are clear and unambiguous, a court must interpret the contract in accordance with its plain meaning, and, unless an ambiguity exists, a court should not resort to outside evidence or the complex rules of construction to construe the contract. Rigel v. National Casualty Co., 76 So.2d 285, 286 (Fla.1954); Old Dominion Ins. Co. v. Elysee, Inc., 601 So.2d 1243, 1245 (Fla. 1 DCA 1992); Southeastern Fire Ins. Co. v. Lehrman, 443 So.2d 408, 408-09 (Fla. 4 DCA 1984); see also Dahl-Eimers, 986 F.2d at 1382; United Nat’l Ins. Co. v. Waterfront New York Realty Corp., 994 F.2d 105, 108-09 (2d Cir.1993); National Fidel. Life Ins. Co. v. Karaganis, 811 F.2d 357, 361 (7th Cir.1987); Carey v. State Farm Mutual Ins. Co., 367 F.2d 938, 941 (4th Cir.1966); Imperial Casualty & Indemnity Co. v. Relder, 308 F.2d 761, 764-65 (8th Cir.1962). This is so because the terms of a contract provide the best evidence of the parties’ intent, see McGhee Interests, Inc. v. Alexander Nat’l Bank, 102 Fla. 140, 135 So. 545, 547 (1931), and where the language is plain a court should not create confusion' by adding hidden meanings, terms, conditions, or unexpressed intentions, see Dahl-Eimers, 986 F.2d at 1382; Carey, 367 F.2d at 941. Moreover, in determining whether a contract is ambiguous, the words should be given their natural, ordinary meaning, Emergency Assoc. v. Sassano, 664 So.2d 1000, 1003 (Fla. 2 DCA 1995); Continental Casualty Co. v. Borthwick, 177 So.2d 687, 689 (Fla. 1 DCA 1965), and ambiguity does not exist simply because a contract requires interpretation or fails to"
},
{
"docid": "16803780",
"title": "",
"text": "L.Ed.2d 989 (1989); Keyser v. Conn. Gen. Life Ins. Co., 617 F.Supp. 1406, 1410 (N.D.Ill.1985). If the language found in the policy is not ambiguous or otherwise susceptible of more than one meaning, the court’s duty is to apply the plain meaning of the words and phrases used to the facts before it. The court is Without authority to rewrite the policy or add meaning to it that is not there. National Union Fire Ins. Co. of Penn. v. Carib Aviation, Inc., 759 F.2d 873, 876 (11th Cir.1985); see also FDIC v. W.R. Grace & Co., 877 F.2d 614, 620-21 (7th Cir.1989) (“the ‘four corners’ rule, which excludes extrinsic evidence if the contract is clear ‘on its face’ ” shows that there “is ancient wisdom as well as ancient prejudice”), cert. denied, — U.S. -, 110 S.Ct. 1524, 108 L.Ed.2d 764 (1990); Orkin, 849 F.2d at 1362 (where party seeks to prove latent ambiguity, interpretation urged must be reasonable and resolve actual ambiguity, not create one). Courts determine whether a party’s construction of a term is reasonable from objective circumstances, not merely by looking at the course of dealing between the parties or other internal evidence of the parties’ understandings. See FDIC, 877 F.2d at 621. Otherwise, the contract would not protect the parties. Id. (nature of the offer of proof to demonstrate ambiguity is critical determination). Where the terms of the contract are ambiguous, vague, or indefinite, where the words have, by the usage of trade, acquired a particular meaning, or where the words are technical or are applicable to a certain trade and require an explanation or interpretation in .order to determine what the parties meant, parol evidence of usage is admissible to explain them. Standard Oil Co. v. United States, 340 U.S. 54, 58-60, 71 S.Ct. 135, 137-38, 95 L.Ed. 68 (1950) (Supreme Court resorted to extrinsic evidence to clarify phrase “predominantly and determining” in relation to causation in insurance policy); accord Nationwide Mutual Ins. Co. v. Jones, 414 So.2d 1169, 1171 (Fla.App.1982) (extrinsic evidence of industry and individual practices admissible to clarify ambiguity); English & American"
},
{
"docid": "148472",
"title": "",
"text": "recover the value of the confiscated trucks from Eximbank under the policy. Eximbank denied coverage on the ground that the insurance policy covered only credit losses caused by any of a comprehensive list of enumerated risks such as customer default, currency inconvertibility, war or expropriation, but did not cover the value of the insured’s assets (other than accounts receivable) lost through any of the enumerated hazards. The district court found the policy ambiguous and construed it as asset protection as well as credit protection insurance. Because we conclude that the policy did not provide coverage for the value of the insured’s confiscated equipment, we reverse. Normal principles of contract interpretation apply to the construction of insurance policies. 2 COUCH, CYCLOPEDIA OF INSURANCE LAW § 15:1 (2d ed. 1984). Words and clauses are to be given their ordinary meaning and effect, and resort to extrinsic evidence is appropriate only to resolve ambiguities. Id. § 15:3. Whether an insurance contract is ambiguous is a question of law. Id. Policy language is ambiguous if it is “reasonably susceptible of two interpretations.” Pearce v. General American Life Insurance Co., 637 F.2d 536, 539 (8th Cir.1980). On the other hand, where a term is defined in the policy, the court is bound by the policy definition. Id. Accord 2 COUCH, supra, at § 15:4. Clauses must be read in context. Verlo v. Equitable Life Assurance Society of the United States, 562 F.2d 1034, 1036 (8th Cir.1977). Ascertaining the parties’ intent as expressed in the policy is the object of construction of the document. 2 COUCH, supra, at §§ 15:9-15:11. While ambiguities are to be construed in favor of the insured, a court may not rewrite the contract. Id. at § 15:10. The Eximbank policy provided two types of coverage: “Coverage A — Commercial Credit Risks” and “Coverage B — Political Risks.” Coverage A indemnified the insured for “loss” incurred in connection with “covered services” caused by the “customer’s” (1) insolvency or (2) substantially overdue payment of amounts owed the insured under the “service contract.” A reading of the contract in its entirety, particularly the definitions,"
},
{
"docid": "9630359",
"title": "",
"text": "contract terms expressed, “language must be given its ordinary and common meaning without further construction”); Pearce v. General Am. Life Ins. Co., 637 F.2d 536, 539 (8th Cir.1980) (\"As a general rule, plain and unambiguous language will be given its ordinary meaning and effect; the need to resort to construction arises only when an ambiguity exists.... But where a term is defined in the policy, the court must look to there and nowhere else_”); General Accident Fire & Life Assurance Corp. v. Akzona Inc., 622 F.2d 90, 93 (4th Cir.1980) (“When an insurance policy defines a term, that definition provides ‘the meaning which must be given to that term ... unless the context clearly requires otherwise.’\") (quoting Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 172 S.E.2d 518, 522 (N.C.1970)); State Farm Fire & Cos. Co. v. Hiermer, 720 F.Supp. 1310, 1314 (S.D.Ohio 1988) (\"Courts may not rewrite, through rules of construction, the unambiguous terms of an insurance contract.”), aff'd, 884 F.2d 580 (6th Cir.1989); Wolf Bros. Oil Co. v. International Surplus Lines Ins. Co., 718 F.Supp. 839, 841 (W.D.Wash.1989) (when contract language unambiguous, it must be enforced as written; if language is ambiguous, court may admit extrinsic evidence); Halpern v. Lexington Ins. Co., 558 F.Supp. 1280, 1282 (E.D.La.1983) (generally court should consider only the language of the contract itself, using parol evidence when language is ambiguous), aff'd, 715 F.2d 191 (5th Cir.1983); see also Capitol Bank of Chicago v. Fidelity & Cos. Co., 414 F.2d 986, 988 (7th Cir.1969) (conduct alleged was forgery in a criminal sense, but no coverage under bond because bond terms limited coverage to forgery as to signature and document was properly signed); Gateway State Bank v. North River Ins. Co., 387 N.W.2d 344, 348 (Iowa 1986) (when forgery defined in bond, resort to common law definition inappropriate); Hall v. Gamble Alden Life Ins. Co., 34 Ill.App.3d 837, 341 N.E.2d 69, 71 (1975) (when \"policy unambiguously defined ‘automobile’ in terms of manufacture’s primary design, evidence of the general and common usage and of the insured’s use of a pick-up truck"
},
{
"docid": "14757798",
"title": "",
"text": "L.Ed.2d 538 (1986). A. Exclusion (j) Fidelity bonds are indemnity contracts that guarantee reimbursement for losses sustained by the insured resulting from the dishonesty of the insured’s employees. Under Wisconsin law, which the parties agree governs this diversity case, the construction of language in an insurance policy is generally a question of law, which may be redetermined independently on appeal. Bradley Bank v. Hartford Accident & Indemnity Co., 737 F.2d 657, 660 (7th Cir.1984) (citing Kraemer Bros. v. United States Fire Ins. Co., 89 Wis.2d 555, 561, 278 N.W.2d 857, 860 (1979)). Construction involves an issue of fact only in “case of ambiguity where words or terms are to be construed by extrinsic evidence....” Id. In interpreting an insurance policy, the court must give the words of the policy their common and ordinary meaning. See Schmidt v. Luchterhand, 62 Wis.2d 125, 133, 214 N.W.2d 393 (1974). Where an exclusion is found to be ambiguous, courts generally construe the clause strictly against the drafter/insurance company and liberally in favor of coverage. See Ark wright-Boston Mfrs. Mutual Ins. Co. v. Wausau Paper Mills Co., 818 F.2d 591, 594 (7th Cir.1987) (citing Garriguenc v. Love, 67 Wis.2d 130, 135, 226 N.W.2d 414, 417 (1975)). However, “[wjhere language is plain and unambiguous, the apparent import of the words must govern,” RTE Corp. v. Maryland Casualty Co., 74 Wis.2d 614, 621, 247 N.W.2d 171, 175 (1976), and the court will simply apply the exclusion according to its terms without applying principles of strict construction. See Arkwright-Boston Mfrs., 818 F.2d at 594 (citing Lawver v. Boling, 71 Wis.2d 408, 421-22, 238 N.W.2d 514, 521 (1976)). In accordance with these general dictates of Wisconsin law, our initial inquiry in the present case is whether exclusion (j) is unambiguous; if it is, we are free to construe it as a matter of law. See Bradley Bank, 737 F.2d at 660. According to Wisconsin case law: Words or phrases in a contract are ambiguous when they are reasonably or fairly susceptible to more than one construction. However, when the terms of a policy are plain on their face, the"
},
{
"docid": "23260099",
"title": "",
"text": "through the resort to extrinsic evidence which creates a question of fact. J.B. Watkins v. Petro-Search, Inc., 689 F.2d 537, 538 (5th Cir.1982); see also Ideal Mut. Ins. Co. v. Last Days Evangelical Ass’n, 783 F.2d 1234, 1238 (5th Cir.1986). The reason for the focus on ambiguity is simple; “[wjhen terms of an insurance policy are unambiguous, they are to be given their plain, ordinary and generally accepted meaning unless the instrument itself shows that the terms have been used in a technical or different sense.” Ramsay v. Maryland Am. Gen. Ins. Co., 533 S.W.2d 344, 346 (Tex.1976). Moreover, when an unambiguous contract exists, the contract alone will be deemed to express the intention of the parties, “for it is objective, not subjective, intent that controls.” Watkins, 689 F.2d at 538 (applying Texas law). By contrast, in Texas an ambiguous contract— when the contract is an insurance policy— is tested by special rules of construction. For example, when an ambiguity exists, exceptions and limitations in insurance policies are construed against the insurer. Ranger Ins. Co. v. Bowie, 574 S.W.2d 540, 542 (Tex.1978). Moreover, the existence of an ambiguity requires a court to resolve the ambiguity in a way which favors the insured and permits recovery, as long as the construction which the court must adopt to do so is not itself unreasonable. Ideal Mut. Ins. Co., 783 F.2d at 1238 (quoting Ramsay, 533 S.W.2d at 346 and Continental Casualty Co. v. Warren, 152 Tex. 164, 167, 254 S.W.2d 762, 763 (1953)). In other words, “[T]he insurer may not escape liability merely because his or its interpretation should appear to us a more likely reflection of the intent of the parties than the interpretation urged by the insured.” Continental Casualty Co., 152 Tex. at 167, 254 S.W.2d at 763. The test for determining whether a contract is ambiguous is whether, after applying established rules of construction, the contract is reasonably susceptible to more than one meaning. Richland Plantation Co. v. Justiss-Mears Oil Co., 671 F.2d 154, 156 (5th Cir.1982) (citing Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d"
},
{
"docid": "14474324",
"title": "",
"text": "and unambiguously excludes coverage under the present facts. Allstate Ins. Co. v. Barnett, 816 F.Supp. 492 (S.D.Ind.1993) (summary judgment granted for defendant insurance company because an unambiguous term in the policy excluded coverage). Under Indiana law, insurance policies are to be interpreted under the principles of contract law. Allstate Ins. Co. v. Boles, 587 F.Supp. 807, 808-10 (S.D.Ind.1984), aff'd, 776 F.2d 1049 (7th Cir.1985) (quoting Cincinnati Ins. Co. v. Mallon, 409 N.E.2d 1100 (Ind.App.1980)). Clear and unambiguous language contained in an insurance policy must be given its plain meaning. Tate v. Secura Ins., 587 N.E.2d 665, 668 (Ind.1992); Harden v. Monroe Guar. Ins. Co., 626 N.E.2d 814, 817 (Ind.Ct. App.1993) (“[c]ourts will give an insurance contract its plain and ordinary meaning when no ambiguity is present in the language of the contract.”); State Farm Fire & Cas. Co. v. Miles, 730 F.Supp. 1462, 1465 (S.D.Ind. 1990), aff'd sub nom. State Farm Fire & Cas. Co. v. Summerfield, 930 F.2d 25 (7th Cir. 1991) ; Boles, 587 F.Supp. at 809 (“[ajlthough special rules of construction of insurance contracts have developed due the disparity in bargaining power between insurers and insureds, if the contract is clear and unambiguous, the language therein must be given its plain meaning.”); American States Ins. Co. v. Aetna Life & Cos. Co., 177 Ind.App. 299, 379 N.E.2d 510, 516 (1978) (“[a]n unambiguous insurance policy must be enforced according to its terms, even those which limit the insurer’s liability.”). However, it is well-established that ambiguous terms must be given the meaning that is most favorable to the insured. Tate, 587 N.E.2d at 668; Freeman v. Commonwealth Life Ins. Co., 259 Ind. 237, 286 N.E.2d 396, 397 (1972). Ambiguous terms in insurance policies should be construed to further the policy’s basic purpose of indemnity. Tate, 587 N.E.2d at 668; Eli Lilly & Co. v. Home Ins. Co., 482 N.E.2d 467 (Ind.1985), cert. denied, 479 U.S. 1060, 107 S.Ct. 940, 93 L.Ed.2d 990 (1987). A term is ambiguous when “it is susceptible of more than one interpretation and reasonably intelligent men would honestly differ as to its meaning.” Harden, 626"
},
{
"docid": "16803778",
"title": "",
"text": "107 Ill.Dec. 705, 708, 507 N.E.2d 858, 861 (1987)). If the language used in the contract is ambiguous or vague and does not in itself disclose the parties’ intent, then the court must resort to usage or other surrounding circumstances existing at the time the con tract was made to divine the intent of the parties. See Conway, 754 F.Supp. at 599. Evidence of surrounding circumstances is admissible only where the written contract is ambiguous. See Chicago Bd. of Options Exchange, Inc. v. Conn. Gen. Life Ins. Co., 713 F.2d 254, 258 (7th Cir.1983) (“In construing ambiguous contract the court must consider any evidence that sheds light upon the intentions of the parties, including the situation of the parties, the purpose of the contract, and the circumstances surrounding the formation of the contract”) (citations omitted); Indemnity Ins. Co. v. Du Pont, 292 F.2d 569, 574 (5th Cir.1961) (unless there is an ambiguity in the contract terms, extrinsic evidence is inadmissible); Ace Electric Supply Co. v. Terra Nova Electric, Inc., 288 So.2d 544, 547-48 (Fla.App.1973) (same). Ambiguity exists in an insurance policy only when its terms make the policy reasonably susceptible to different constructions and interpretations, one resulting in coverage and one resulting in exclusion. See Thompson v. Amoco Oil Co., 903 F.2d 1118, 1120 (7th Cir.1990); Towne Realty, 854 F.2d at 1267; Gulf Tampa Drydock Co. v. Great Atlantic Ins. Co., 757 F.2d 1172, 1174-75 (11th Cir.1985); Fabrica Italiana Lavorazione Materie Organiche, S.A.S. v. Kaiser Aluminum & Chemical Corp., 684 F.2d 776, 780 (11th Cir.1982); see also Papago Tribal Utility Authority v. FERC, 723 F.2d 950, 955 (D.C.Cir.1983), cert. denied, 467 U.S. 1241, 104 S.Ct. 3511, 82 L.Ed.2d 820 (1984). The court may not create ambiguity where none exists. Simmons Refining Co. v. Royal-Globe Ins. Co., 543 F.2d 1195, 1197 (7th Cir.1976). Significantly, neither the mere absence of a policy definition nor the presence of a dispute as to meaning of the provision necessarily renders the policy or term ambiguous. Orkin Exterminating Co. v. FTC, 849 F.2d 1354, 1360 (11th Cir.1988), cert. denied, 488 U.S. 1041, 109 S.Ct. 865, 102"
}
] |
809889 | rescind her retirement request. 1. Speech on Matters of Public Concern Speech involves a matter of public concern if the “content, form, and context” of the speech can “be fairly considered as relating to any matter of political, social, or other concern to the community.” Cook, 414 F.3d at 1319. See also Anderson v. Burke County, Ga., 239 F.3d 1216, 1220 (11th Cir.2001) (addressing fire fighter’s union leader’s distribution of a questionnaire addressing grievance procedures, vacations, promotions, and benefits to candidates for political office); Maples v. Martin, 858 F.2d 1546, 1552 (11th Cir.1988) (addressing public school employee claim of free speech); Hatcher v. Board of Public Educ. and Orphanage for Bibb County, 809 F.2d 1546, 1556 n. 19 (11th Cir.1987) (same); REDACTED The court must look at the record as a whole and determine whether the speaker’s purpose was to raise issues of public concern, on the one hand, or to further his own private interest, on the other. Gonzalez v. Lee County Housing Authority, 161 F.3d 1290, 1297 (11th Cir.1998) (addressing housing employee’s letter to supervisor about discrimination in the department). A court must evaluate each instance of alleged speech. Connick v. Myers, 461 U.S. 138, 149, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (evaluating each question on a questionnaire); Anderson, 239 F.3d at 1220 (parsing questions on questionnaire to potential elected officials); Gonzalez, 161 F.3d at 1297 (11th Cir.1998) (evaluating each part of a letter and finding one part | [
{
"docid": "1091073",
"title": "",
"text": "is found in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The Supreme Court announced in Connick that the question of whether a public employee’s speech is constitutionally protected turns upon whether the speech related to matters of public concern or to matters of merely personal interest to the employee. Connick, 461 U.S. at 146-47, 103 S.Ct. at 1689-90; Ballard v. Blount, 581 F.Supp. 160, 162 (N.D.Ga.1983), aff'd, 734 F.2d 1480 (11th Cir.) (unpublished decision), cert. denied, - U.S. -, 105 S.Ct. 590, 83 L.Ed.2d 700 (1984). “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. at 1690; Ballard, 581 F.Supp. at 162. If the employee’s speech cannot fairly be characterized as constituting speech on a matter of public concern, the inquiry is at an end. With that circumstance present, we need not proceed to determine whether the employee’s speech was a substantial or motivating factor in the adverse employment decision. Connick, 461 U.S. at 146, 103 S.Ct. at 1689; Renfroe v. Kirkpatrick, 722 F.2d 714, 715 (11th Cir.1984); Ballard, 581 F.Supp. at 162. If, however, the employee’s speech is determined to relate to a matter of public concern and to have been a substantial or motivating factor in the adverse employment decision, the inquiry focuses upon whether the adverse employment decision was justified. Connick, 461 U.S. at 149-50, 103 S.Ct. at 1691-92; see also Givhan v. Western Line Consolid. Sch. Dist., 439 U.S. 410, 412, 99 S.Ct. 693, 694, 58 L.Ed.2d 619 (1979). It is only at this point that we balance “the interest of the [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. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968); Connick, 461 U.S. at 149-54, 103 S.Ct. at 1691-94. The employee"
}
] | [
{
"docid": "23199314",
"title": "",
"text": "step of the analysis is whether Holder engaged in protected speech activity. In order to find whether a public employee engaged in protected free speech activity, the court must first determine whether the speech can be fairly characterized as constituting speech on a matter of public concern. Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); Pickering, 391 U.S. at 568, 88 S.Ct. at 1734; Zamboni v. Stamler, 847 F.2d 73, 77 (3d Cir.1988); Czurlanis, 721 F.2d at 103; Lees v. West Greene School District, 632 F.Supp. 1327, 1330 (W.D.Pa.1986). An employee’s speech addresses a matter of public concern when it can be “fairly considered as relating to any matter of political, social, or other concern to the community.” Connick, 461 U.S. at 146, 103 S.Ct. at 1690; Johnson v. Lincoln Univ. of Com., 776 F.2d 443, 451 (3d Cir.1985). Whether the speech can be fairly characterized as relating to any political, social or other concern of the community is determined by its “content, form, and context.” Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690. The content of the speech may help to characterize it as relating to a matter of social or political concern of the community if, for example, the speaker seeks to “bring to light actual or potential wrongdoing or breach of public trust” on the part of government officials. Id. at 148, 103 S.Ct. at 1691. The form and context of the speech may help to characterize it as relating to a matter of social or political concern to the community if, for example, the forum where the speech activity takes place is not confined merely to the public office where the speaker is employed. Id. at 148-49,103 S.Ct. at 1690-91. If the court finds that the employee’s speech constitutes speech on a matter of public concern, the court must then determine whether the interest of the state in promoting the efficiency of the public services it performs through its employees outweighs the interest of the employee in commenting upon matters of public concern. Id. at 142, 103 S.Ct."
},
{
"docid": "10047899",
"title": "",
"text": "S.Ct. 2891, 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 140-42, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Of course, a public employee does not have an absolute right to freedom of speech and the “State’s interest as an employer in regulating the speech of its employees differ[s] significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Connick, 461 U.S. at 140, 103 S.Ct. 1684 (quotation marks omitted). To strike the appropriate balance between the respective interests, we apply the four-step analysis set forth in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) and Bryson v. City of Waycross, 888 F.2d 1562 (11th Cir.1989). To prevail under this analysis, an employee must show that: (1) the speech involved a matter of public concern; (2) the employee’s free speech interests outweighed the employer’s interest in effective and efficient fulfillment of its responsibilities; and (3) the speech played a substantial part in the adverse employment action. Bryson, 888 F.2d at 1565-66. If an employee satisfies her burden on the first three steps, the burden then shifts to the employer to show by a preponderance of the evidence that it would have made the same decision even in the absence of the protected speech. Id. The first two steps are questions of law; the final two steps are “questions of fact designed to determine whether the alleged adverse employment action was in retaliation for the protected speech.” Anderson v. Burke County, Ga., 239 F.3d 1216, 1219-20 (11th Cir.2001). Because the district court found that jury questions were created with respect to the cause of Cook’s transfer, and we accept those findings (see Part I), we address only steps (1) and (2), which are questions of law. First, we consider the threshold question of whether Cook’s speech involved a matter of public concern. A public employee’s speech involves a matter of public concern if it can “be fairly copsid-ered as relating to any matter of political, social, or other concern to the community.” Connick, 461 U.S. at"
},
{
"docid": "21589257",
"title": "",
"text": "equation, the district court may take into account the fact that not all of the speech may have been protected. Kurtz v. Vickrey, 855 F.2d 723, 733 (11th Cir.1988). Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), is an example of a court considering speech as a whole even though portions of the speech did not touch on matters of public concern. In Connick, an assistant district attorney was discharged after distributing a multi-question questionnaire concerning office policy, morale, and employee confidence in supervisors. The Court determined that only the question asking whether employees felt pressured to work in political campaigns touched on a matter of public concern. Nevertheless, the Court went on to consider the entire questionnaire in balancing the interests. 461 U.S. at 149-54, 103 S.Ct. at 1691-94. The Court held that because the “questionnaire touched upon matters of public concern in only a most limited sense” the employer could discharge the employee for speech which he reasonably believed would disrupt the office. Connick, 461 U.S. at 154, 103 S.Ct. at 1693. Courts have cited Connick for the proposition that a single instance of speech should not be divided for purposes of applying the Pickering balance. See, e.g., Hesse v. Board of Educ., 848 F.2d 748, 753 n. 4 (7th Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 1128, 103 L.Ed.2d 190 (1989); Eiland v. City of Montgomery, 797 F.2d 953, 957 (11th Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987). In Connick, “the Court applied the Pickering balancing test to the survey as a whole, rather than to the single question relating to a matter of public concern.” Kurtz, 855 F.2d at 732 n. 7 (emphasis in original). At the other end of the spectrum is the situation where the court must consider multiple instances of speech, each dealing with separate subjects. There, the court may treat each instance of speech separately in applying the Pickering balance. See Kurtz v. Vickrey, 855 F.2d 723, 732-33 (11th Cir.1988). Between those two situations lies less clear circumstances where the"
},
{
"docid": "10562721",
"title": "",
"text": "Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the Court considered the case of an employee of the New Orleans District Attorney’s office, who, dissatisfied with her impending transfer, circulated a questionnaire that asked a series of general questions about levels of office morale and the confidence employees had in their supervisors. The Court concluded that (with one exception not relevant here) the “questions reflected] one employee’s dissatisfaction with a transfer and an attempt to turn that displeasure into a cause célebre” and hence did not raise issues of public concern. Id. at 148, 103 S.Ct. 1684. Connick emphasized, however, that “[wjhether 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.” Id. at 147-48, 103 S.Ct. 1684. Moreover, it is clear that the presence of a personal motivation for an employee’s speech, although certainly a factor in the public-concern analysis, need not destroy the character of a communication as one of public concern. See Tao, 27 F.3d at 639 (“The motivation of the employee is only one factor to be considered in assessing whether a statement is one of public concern.”). Even a disgruntled employee can raise a matter that is of considerable concern to the public. See, e.g., Connick, 461 U.S. at 148, 103 S.Ct. 1684; Tao, 27 F.3d at 640; Stroman v. Colleton County School Dist., 981 F.2d 152, 157-58 (4th Cir.1992) (finding that although a letter circulated by a teacher to fellow teachers was prompted by a “personal grievance,” and the letter’s substance, “in large part, seems to be limited to this grievance,” the letter raised questions of budget mismanagement, and hence was arguably on a subject of public concern); Zamboni v. Stamler, 847 F.2d 73, 77-78 (3d Cir.1988) (finding that a police detective’s objections to a revised promotion scheme were on a subject of public concern, even though the employee was partly motivated by a desire to improve his own chances for a promotion). Indeed, it may be that those employees who are dissatisfied"
},
{
"docid": "19694323",
"title": "",
"text": "the free speech rights of public employees, that ‘[a policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.’ ” Rankin v. McPherson, 483 U.S. 378, 395, 107 S.Ct. 2891, 2902, 97 L.Ed.2d 315 (1987) (Scalia, J., dissenting), quoting McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892). Even where a public employee has no independent constitutional right to retain his position, to be promoted, or to receive any other job benefit, the law is clear that a government employer may not deprive him of such a benefit in retaliation for expression protected under the first amendment. Rankin, 483 U.S. at 383, 107 S.Ct. at 2896; Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1505 (11th Cir.1990). Judicial scrutiny of a claim by a public employee that he was punished for exercising his right to freedom of speech involves a four-step analysis. See Williams v. Roberts, 904 F.2d 634, 637 (11th Cir.1990). See also Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546, 1556 n. 19 (11th Cir.1987). First, the employee must demonstrate that the expression addresses a matter of “public concern.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); Schneider v. Indian River Community College Found., Inc., 875 F.2d 1537, 1542 (11th Cir.1989). Whether an employee’s expression may be characterized as on a matter of public concern “must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Rankin, 483 U.S. at 384-85, 107 S.Ct. at 1987, quoting Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690. Although not “all matters which transpire within a government office” or even “every criticism directed at a public official” will constitute a comment on a “matter of public concern,” it is clear that this phrase embraces a wide variety of speech directed to political, social, economic, and cultural issues of substantial, legitimate interest to the public. See Maples v. Martin, 858 F.2d 1546, 1552-53 (11th Cir.1988). When a public employee"
},
{
"docid": "10047900",
"title": "",
"text": "1565-66. If an employee satisfies her burden on the first three steps, the burden then shifts to the employer to show by a preponderance of the evidence that it would have made the same decision even in the absence of the protected speech. Id. The first two steps are questions of law; the final two steps are “questions of fact designed to determine whether the alleged adverse employment action was in retaliation for the protected speech.” Anderson v. Burke County, Ga., 239 F.3d 1216, 1219-20 (11th Cir.2001). Because the district court found that jury questions were created with respect to the cause of Cook’s transfer, and we accept those findings (see Part I), we address only steps (1) and (2), which are questions of law. First, we consider the threshold question of whether Cook’s speech involved a matter of public concern. A public employee’s speech involves a matter of public concern if it can “be fairly copsid-ered as relating to any matter of political, social, or other concern to the community.” Connick, 461 U.S. at 146, 103 S.Ct. 1684. To make this determination, we consider the “content, form, and context” of the speech. Rankin, 483 U.S. at 384-85, 107 S.Ct. 2891. The defendants maintain that Cook’s speech did not involve a matter of public concern because it concerned only internal bus driver employment issues and other matters pertaining only to Cook’s personal interests. We disagree. As president of the USEA, Cook spoke on behalf of an organization that, inter alia, seeks to improve the safety of children in school and believes that well-trained and motivated employees are one of the keys to school safety. The mere fact that her speech was made to coworkers or to supervisors rather than directed at the general public does not remove the speech from the category of public concern. Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 415-16, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979); Peterson v. Atlanta Housing Authority, 998 F.2d 904, 916 (11th Cir.1993). Specifically, Cook expressed her concerns about the safety of children due to bus overcrowding and the"
},
{
"docid": "1537573",
"title": "",
"text": "EXERCISE OF CONSTITUTIONAL RIGHTS The appellants contend that the exercise of their constitutional rights was the motivation for their dismissal. It may have been unconstitutional for the college to fire Cosgrove and Schneider if the dismissal was based on their exercise of First Amendment rights. Mt. Healthy School District Board of Education v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574-75, 50 L.Ed.2d 471 (1977). The judicial scrutiny of a claim of retaliation against a public employee who asserts that his activity was protected by the First Amendment involves three steps. Maples v. Martin, 858 F.2d 1546, 1552 (11th Cir.1988). First, the public employee must show that the speech addresses a matter of public concern. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); Id. Whether an employee’s speech addresses a matter of public concern is 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. at 1690-91. If the speech implicates a matter of public concern, it is constitutionally protected. “This court has frequently reaffirmed that speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values.’ ” Id. Second, the public employee must show that the speech was a “substantial or motivating” factor in the employment decision. Maples v. Martin, supra, at 1552. If a plaintiff carries this initial burden on the causation issue, the burden shifts to the employer to show that the same decision would have been made in the absence of the protected conduct. Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576. Finally, when both of these requirements have been established, the court will engage in the balancing test set out in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). See also Mt. Healthy, 429 U.S. at 284, 97 S.Ct. at 574. The test determines whether the employment decision was justified in light of the competing social interests at stake: “The interest of the [employee], as a citizen, in commenting upon"
},
{
"docid": "21625005",
"title": "",
"text": "action caused [her] to suffer an injury that would hkely chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the adverse action was motivated at least in part as a response to the exercise of [her] constitutional rights. Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 715 (6th Cir.2001) (citing Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir.2000)). It is at the first step of this analysis that Gragg’s claims fail. Speech is protected when it addresses a matter of public concern, and the employee’s interest in making such statements outweighs the “interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 144 (6th Cir.1997) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 5.Ct. 1731, 20 L.Ed.2d 811 (1968)). A public concern is one relating to “any matter of political, social, or other concern to the community.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). We determine whether the speech addresses a matter of public concern by looking to the “content, form, and context of a given statement, as revealed by the whole record.” Id. at 147-48, 103 S.Ct. 1684. Because of the need to provide government officials with the ability to manage their offices without “intrusive oversight by the judiciary,” id. at 146, 103 S.Ct. 1684, our concern must be to protect those expressive activities of a public employee when he speaks as a citizen on a public matter; that concern ordinarily does not extend to a public employee’s speaking as an employee on matters only of his personal interest. Id. at 147, 103 S.Ct. 1684. In Connick, the plaintiff, an assistant district attorney, prepared and distributed to her colleagues, a questionnaire concerning a number of office policy issues such as morale and confidence in supervisors. Id. at 141, 103 S.Ct. 1684. One question in the questionnaire asked whether the other assistant attorneys felt pressured to work in political campaigns. Id. The"
},
{
"docid": "6084184",
"title": "",
"text": "upon matters only of personal interest,” a federal court will rarely be the appropriate forum to gauge the wisdom of any decision taken by the public employer in response to the employee’s speech. Stanley v. Dalton, 219 F.3d 1280, 1288 n. 13 (11th Cir.2000), citing Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Moreover, the court must look to the context of the speech and, “when there is a personal element to the speech, complaints of wrongdoing within a public agency may not constitute speech on a matter of public concern.” Stanley, 219 F.3d at 1288 n. 13. See Anderson v. Burke County, 239 F.3d 1216, 1221 (11th Cir.2001) (plaintiff employee’s questionnaire concerning deficiencies in department had more to do with plaintiffs grievances as an employee than with concerns of a public nature.) Examined with the above guidance in mind, the Court concludes that the Feb ruary 7th letter to the Regional Board was drafted largely to further plaintiffs personal ambitions to become the interim director, and that any matters of public interest referenced in the latter were secondary to that overall purpose. It is true that plaintiff did mention the allegedly improper appointment process of the Board and the latter’s failure to represent demo-graphieally its constituents: both of which facts arguably connote a matter of public interest. Plaintiff also cited the deficit budget figures: a fact that arguably invokes the public interest, but that also was a fact likely already well known to the Regional and Center Board. The overriding “thrust” of the letter, however, was a complaint about the Board’s countermanding of the proposed RIF action— which action would have eliminated plaintiffs only competition for the interim spot, Jimmy Wiggins — and the Board’s undermining of the “present leadership,” both of which comments, taken in context, constitute an indirect complaint by plaintiff that she was not going to be named the interim director. Further, plaintiffs conclusion— that the Board should be temporarily relieved of its duties and that the “present leadership” of the Center should be supported and sustained — -was likewise"
},
{
"docid": "22252892",
"title": "",
"text": "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 F.3d at 422 (quoting Connick, 461 U.S. at 147-48, 103 S.Ct. 1684). The public concern inquiry is purely a question of law, which we review de novo. Berry v. Dept. of Soc. Servs., 447 F.3d 642, 648 (9th Cir.2006) (citing Hyland v. Wonder, 972 F.2d 1129, 1134 (9th Cir.1992)). If the speech in question does not address a matter of public concern, then the speech is unprotected, and qualified immunity should be granted. Second, the plaintiff bears the burden of showing the speech was spoken in the capacity of a private citizen and not a public employee. See Garcetti v. Ceballos, 547 U.S. 410, 421-22, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); Posey v. Lake Pend Oreille School Dist. No. 84, 546 F.3d 1121, 1126-27 (9th Cir.2008). “Statements are made in the speaker’s capacity as citizen if the speaker ‘had no official duty1 to make the questioned statements, or if the speech was not the product of ‘performing the tasks the employee was paid to perform.’ ” Posey, 546 F.3d at 1127 n. 2 (some"
},
{
"docid": "23009943",
"title": "",
"text": "not any adverse response to that expression. In Connick, a public employee circulated a questionnaire after expressing opposition to a reassignment and transfer policy. The questionnaire was the basis for subsequent alleged retaliatory action against the employee. The Supreme Court reviewed the content of each question contained in the questionnaire to determine whether the questionnaire touched upon a matter of public concern. The Court found that all but one of the fourteen questions posed by the questionnaire did not “fall under the rubric of matters of ‘public concern[,]’ ” but were instead mere extensions of the employee’s dissatisfaction over the transfers. 461 U.S. at 148, 103 S.Ct. at 1690. After reviewing the “content, form, and context” of Ms. Griffin’s grievance, we are convinced that the district court correctly concluded that Ms. Griffin addressed a matter of purely private concern — her performance rating. Ms. Griffin merely requested that her performance status be reinstated to superior. We already have held in Knapp v. Whitaker, 757 F.2d 827, 840 (7th Cir.), cert. denied, 474 U.S. 803, 106 S.Ct. 36, 88 L.Ed.2d 29 (1985), that a schoolteacher’s complaints about his classroom assignments and the content of his evaluation are not protected speech because “such speech is a matter of personal concern, not a matter of public concern.” Therefore, because Ms. Griffin’s grievance pertained to a matter of purely private concern, the district court properly granted the defendants’ motion for summary judgment. Conclusion For the foregoing reasons, the judgment of the district court is affirmed. Affirmed. . See Hatcher v. Board of Pub. Educ. & Orphanage, 809 F.2d 1546, 1558 (11th Cir.1987) (discussed more fully infra pp. 1212-1213). . See Boals v. Gray, 775 F.2d 686, 692 (6th Cir.1985) (discussed more fully infra pp. 1213-1214). . The first amendment, in relevant part, states: \"Congress shall make no law ... abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const, amend. I. Our opinion, like the district court's, adheres \"to the conventional and convenient (though"
},
{
"docid": "17146252",
"title": "",
"text": "a matter of public concern....” Connick, 461 U.S. at 146, 103 S.Ct. at 1690. According to Moran, the letter does not satisfy the public concern requirement because Gonzalez did not distribute her letter publicly and because Gonzalez has not shown that her letter addressed specific matters that already had drawn significant public attention. In Connick, however, the Supreme Court held that the public concern requirement was satisfied where a government employee spoke about an important matter of public interest, even though the employee spoke only within the workplace and even though the specific matter addressed had not drawn significant public attention prior to her speech. See id. at 149, 103 S.Ct. at 1691. In order to determine whether the letter satisfies the public concern requirement, we must analyze its “content, form, and context ... as revealed by the whole record,” Core- nick, 461 U.S. at 147-48, 103 S.Ct. at 1690, and evaluate whether Gonzalez’s purpose was “to raise issues of public concern, on the one hand, or to further her own private interest, on the other,” Morgan v. Ford, 6 F.3d 750, 754 (11th Cir.1993). This question is one of law, not of fact. See Connick, 461 U.S. at 148 n. 7, 103 S.Ct. at 1690 n. 7. If it is unclear whether the letter satisfies the public concern requirement, then Moran is entitled to qualified immunity on Gonzalez’s section 1983 claim because Moran’s actions did not violate Gonzalez’s clearly established First Amendment rights. See Badia v. City of Miami, 133 F.3d 1443, 1445 (11th Cir.1998) (per cu-riam). In large part, the letter simply blames Moran for creating a poor working atmosphere at the LCHA. We thus conclude that much of the letter does not touch upon matters of public concern. See Connick, 461 U.S. at 148-49, 103 S.Ct. at 1690-91 (stating that most of the elements of an employee’s questionnaire were “mere extensions of [her] dispute over her transfer” and holding that “the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs”). We must evaluate every element"
},
{
"docid": "15197879",
"title": "",
"text": "the only three questions before us are (1) Did the officers’ speech touch on a matter of public concern? (2) If so, did Jones and Arreola carry their burden of demonstrating that their interests as employers outweighed the officers’ interests in speaking out on this matter of public concern? (3) And, even if the speech was protected, was that fact sufficiently well established in November of 1993 to deprive the defendants of qualified immunity? Applying the line of cases that began with Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), we conclude that the district court properly answered all three questions in favor of Gustafson and Cornejo. A. Matter of Public Concern Whether a government employee’s speech addresses a matter of public con cern depends upon “the content, form, and context of [the speech] 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). Of these three factors, content is most important. Button v. Kibby-Brown, 146 F.3d 526, 529 (7th Cir.1998); Marshall v. Porter County Plan Comm’n, 32 F.3d 1215, 1219 (7th Cir.1994); Belk v. Town. of Minocqua, 858 F.2d 1258, 1264 (7th Cir.1988). The “public concern” element is satisfied if the speech can fairly be said to relate to a matter of political, social, or other concern to the community, rather than merely a personal grievance of interest only to the employee. Connick, 461 U.S. at 146, 103 S.Ct. 1684. Gustafson and Cornejo contend on appeal that we need not reach the merits of this issue because we previously held that their speech was on a matter of public concern in Gustafson I. The decision there, they suggest, creates binding law of the case. What we said, however, was that “[bjearing in mind that we are just evaluating the pleadings, we find that the plaintiffs adequately alleged both the content of their speech and the defendants’ awareness of it.” 117 F.3d at 1018. We similarly emphasized the fact that our conclusions were based on the pleadings when we discussed the “public concern”"
},
{
"docid": "19877442",
"title": "",
"text": "that an employment decision was made in retaliation for engaging in protected speech, must show that: (1) “the plaintiff was engaged in constitutionally protected speech; (2) the plaintiff was subjected to an adverse action or was deprived of some benefit; and (3) the protected speech was a ‘substantial’ or a ‘motivating factor’ in the adverse action.” Brandenburg v. Housing Authority of Irvine, 253 F.3d 891, 896 (6th Cir.2001) (citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). To demonstrate that Banks was engaging in constitutionally protected speech, she must show that her speech touched on matters of public concern, and that her “interest in making such statements outweighs the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Educ. of Township High School, Dist. 205, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Mt. Healthy City School Dist. Bd. of Educ., 429 U.S. at 284, 97 S.Ct. 568; and Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 144 (6th Cir.1997). Whether speech addresses a matter of public concern is a question of law. Barnes v. McDowell, 848 F.2d 725, 733 (6th Cir.1988). If a plaintiffs speech does not ad dress a matter of public concern, no further inquiry is necessary. Id. The Supreme Court has held that speech addressing a matter of public concern is speech relating to “any matter of political, social, or other concern to the community.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). By contrast, a public employee’s speech dealing with “matters only of personal interest” is generally not afforded constitutional protection. Id. at 147, 103 S.Ct. 1684. “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.” Id. at 147-48, 103 S.Ct. 1684. In general, speech involves matters of public concern when it involves “issues about which"
},
{
"docid": "16644035",
"title": "",
"text": "by a preponderance of the evidence, that “it would have reached the same decision ... even in the absence of the protected conduct.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The first two factors are questions of law designed to determine whether the First Amendment protects the employee’s speech. See Beckwith v. City of Daytona Beach Shares, Fla., 58 F.3d 1554, 1564 (11th Cir.1995). The second two factors are questions of fact designed to determine whether the alleged adverse employment action was in retaliation for the protected speech. See id. MATTERS OF PUBLIC CONCERN Here the speech, in the form of a questionnaire, addressed political candidates about their position on certain issues concerning the employment and staffing conditions of the Burke County’s fire and rescue services. “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, 103 S.Ct. at 1687. Some of the questions presented in the questionnaire referred to matters such as grievance procedures, vacation policies, promotion guidelines and pension benefits. We believe these topics relate to employment issues and just because they arise in a governmental office does not transform them into matters of public concern. See Connick, 103 S.Ct. at 1690-91 (finding that questionnaire addressing matters such as office morale and need for grievance committee did not address matters of public concern); Phares v. Gustafsson, 856 F.2d 1003, 1009 (7th Cir.1988) (dispute over vacation time not matter of public concern); Gros v. Port Washington Police Dist., 944 F.Supp. 1072, 1081 (E.D.N.Y.1996) (police officer speech involving his own promotion not matter of public concern); Broderick v. Roache, 751 F.Supp. 290, 293 (D.Mass.1990) (subjects affecting the police department’s employment policies, such as proposed promotional exam for lieutenants and failure to promote police officer, did not support § 1983 claim). In addition, none of these questions explicitly purport to advance any citizen interest. Therefore, reading these particular questions together, in context, further supports the determination that"
},
{
"docid": "13208709",
"title": "",
"text": "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 record as a whole.” Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690. The status of Free’s speech is a question of law. Id. at 150 n. 10, 103 S.Ct. at 1692 n. 10. Free alleges that he vocally and openly criticized ASU’s policies and actions and that he sent a memorandum to Hager and Steptoe expressing his disapproval of the policies and administration of the School of Music. Specifically, Free criticized Hager’s management of the department and the administration’s position on the grade-changing incident occurring on or about May 7, 1993. Free contends that these criticisms questioned matters of political and social concern within the University as well as within the community. “Speech by members of an academic community, even when critical in nature, should not be easily denied constitutional protection.” Maples v. Martin, 858 F.2d 1546, 1553 (11th Cir.1988). “[T]eachers whose speech directly affects the public’s perception of the quality of education in a given academic system find their speech protected.” Id. at 1553 (citing Pickering, 391 U.S. at 571, 88 S.Ct. at 1736). On the other hand, “speech that concerns internal administration of the educational system and personal grievances will not receive constitutional protection.” Id., 858 F.2d 1546, 1552 (11th Cir.1988). For example, criticism regarding salary levels, court assignments, course syllabus, and tenure decisions are “matters relating to internal college affairs rather than to matters of political or social import — matters of public concern.” Id. (quoting Ballard v. Blount, 581 F.Supp. 160 (N.D.Ga.1983), aff'd, 734 F.2d 1480 (11th Cir.1984)). Without having the memorandum or other evidentiary material in the record, the court must conclude at this stage of the proceedings that Free makes sufficient factual allegations to demonstrate his speech was deserving of protection. Although much of his criticism could be construed as speech about internal administrative matters, Free also appears to be questioning, at least in part, the educational standards of ASU and its School of Music. This is a"
},
{
"docid": "1537572",
"title": "",
"text": "with state representative Patchett arguably demonstrates Heise’s alleged personal, or institutional, animosity toward the politician. Finally, although President Heise told WQCS staff members not to cover the local elections, it is undisputed that there would have been a conflict of interest with respect to the coverage, and thus, there can be no possible inference of illegal motive. The four incidents thus involve, at worst: (1) a programming decision designed to suppress a viewpoint which might antagonize a potential donor; (2) a programming decision based on political philosophy; (3) a programming decision based on dislike of a particular politician or his views; and (4) a programming decision designed to avoid a conflict of interest. The incidents are not large in number. Neither are they logically cumulative; i.e., each involves a programming decision based on considerations distinct from the others. Thus, it cannot be said that the four incidents are manifestations of a single broad policy or philosophy. Therefore, the appellants have not met their burden under Muir, and summary judgment was appropriate. III. RETALIATION FOR THE EXERCISE OF CONSTITUTIONAL RIGHTS The appellants contend that the exercise of their constitutional rights was the motivation for their dismissal. It may have been unconstitutional for the college to fire Cosgrove and Schneider if the dismissal was based on their exercise of First Amendment rights. Mt. Healthy School District Board of Education v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574-75, 50 L.Ed.2d 471 (1977). The judicial scrutiny of a claim of retaliation against a public employee who asserts that his activity was protected by the First Amendment involves three steps. Maples v. Martin, 858 F.2d 1546, 1552 (11th Cir.1988). First, the public employee must show that the speech addresses a matter of public concern. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); Id. Whether an employee’s speech addresses a matter of public concern is 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. at 1690-91. If the speech implicates a matter"
},
{
"docid": "6084183",
"title": "",
"text": "holding of a secret meeting in which it rescinded Ashe and plaintiffs proposed reduction in force; (2) the Board’s undermining of the Center’s “present leadership;” (3) the deficits under which the Center was operating; (4) past non-compliance with Georgia law in the appointment of the Center Board; and (5) the failure of the Board to represent, in terms of racial and disability demographics, the population that it serves, as required by Georgia law. (Feb. 7th letter attach, as Ex. K to Pl.’s Br. [52].) The letter ends by urging the Regional Board to relieve the Center Board of its duties, to implement the deficit reduction correction action previously submitted to the Regional Board, and to “sustain and support present leadership” at the Center. (Id.) Plaintiff argues that this letter touches on matters of public interest. In determining whether speech involves matters of public interest, a reviewing court must attempt to determine the goal of the speech. If the governmental employee speaks “not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest,” a federal court will rarely be the appropriate forum to gauge the wisdom of any decision taken by the public employer in response to the employee’s speech. Stanley v. Dalton, 219 F.3d 1280, 1288 n. 13 (11th Cir.2000), citing Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Moreover, the court must look to the context of the speech and, “when there is a personal element to the speech, complaints of wrongdoing within a public agency may not constitute speech on a matter of public concern.” Stanley, 219 F.3d at 1288 n. 13. See Anderson v. Burke County, 239 F.3d 1216, 1221 (11th Cir.2001) (plaintiff employee’s questionnaire concerning deficiencies in department had more to do with plaintiffs grievances as an employee than with concerns of a public nature.) Examined with the above guidance in mind, the Court concludes that the Feb ruary 7th letter to the Regional Board was drafted largely to further plaintiffs personal ambitions to become the interim director, and that any"
},
{
"docid": "19694324",
"title": "",
"text": "& Orphanage, 809 F.2d 1546, 1556 n. 19 (11th Cir.1987). First, the employee must demonstrate that the expression addresses a matter of “public concern.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); Schneider v. Indian River Community College Found., Inc., 875 F.2d 1537, 1542 (11th Cir.1989). Whether an employee’s expression may be characterized as on a matter of public concern “must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Rankin, 483 U.S. at 384-85, 107 S.Ct. at 1987, quoting Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690. Although not “all matters which transpire within a government office” or even “every criticism directed at a public official” will constitute a comment on a “matter of public concern,” it is clear that this phrase embraces a wide variety of speech directed to political, social, economic, and cultural issues of substantial, legitimate interest to the public. See Maples v. Martin, 858 F.2d 1546, 1552-53 (11th Cir.1988). When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, such expression is not “totally beyond the protection of the First Amendment”; however, “absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s, behavior.” Rankin, 483 U.S. at 385 n. 7, 107 S.Ct. at 2897 n. 7, quoting Connick, 461 U.S. at 147, 103 S.Ct. at 1690. See also Ferrara v. Mills, 781 F.2d 1508, 1512 n. 4 (11th Cir.1986). Second, once a court concludes that speech for which a public employee claims he suffered reprisal addresses a matter of public concern, it must resolve the factual issue of whether the expression was a “substantial or motivating factor” in the employment decision. Mount Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Schneider, 875 F.2d at 1542. As with the element"
},
{
"docid": "10641853",
"title": "",
"text": "appropriate forum in which to review the wisdom of a personnel decision. ...” Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (citation omitted). “Speech by a public employee is on a matter of public concern if it relates ‘to any matter of political, social, or other concern to the community.’ ” Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir.2003) (quoting Connick, 461 U.S. at 146, 103 S.Ct. 1684). “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. The facts of the Supreme Court’s decision in Connick indicate that motive is not dispositive as to whether an employee’s speech is a matter of public concern. That ease involved an assistant district attorney who had circulated a questionnaire in the office. Id. at 140-41, 103 S.Ct. 1684. The Court noted that her motivation in doing so was to “gather ammunition for another round of controversy with her superiors.” Id. at 148, 103 S.Ct. 1684. Nevertheless, the Court found that one question, whether assistant district attorneys felt pressured to work on political campaigns, did address a matter of public concern. Id. at 149-50, 103 S.Ct. 1684. Therefore, it went on to conduct the Pickering balancing test. Id. at 150, 103 S.Ct. 1684. Because Myers’s motivation for circulating the entire questionnaire was the same, if motive was dispositive, the Court would not have reached the Pickering balancing. Therefore, the speaker’s motive cannot be the only factor that we consider in deciding whether Reuland’s statement is a matter of public concern. Similarly, in United States v. National Treasury Employees Union [hereinafter NTEU], the Supreme Court found the speech at issue to be a matter of public concern because “the content of the respondents’ messages had nothing to do with their jobs and does not even arguably have any adverse impact on the efficiency of the office in which they work. They do not address audiences composed of coworkers or supervisors;"
}
] |
588951 | the term broadly. Elliot v. Frontier Properties (In re Lewis W. Shurtleff, Inc.), 778 F.2d 1416, 1419 (9th Cir.1985). Generally, property belongs to the debtor for purposes of § 547 if its transfer will deprive the bankruptcy estate of something which could otherwise be used to satisfy the claims of creditors. Cf. Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1355-56 (5th Cir.1986) (debtor has an interest in property under § 547 if the transfer diminishes the bankruptcy estate). Here, the money BRNA used to purchase bullion came from comingled bank accounts under BRNA’s control. Because this money could have been used to pay other creditors, it presumptively constitutes property of the debtor’s estate. REDACTED The dual purpose of § 547 warrants reaching this result. That purpose is to discourage creditors from racing to the courthouse to dismember the debtor during its slide into bankruptcy and to further the prime bankruptcy policy of equal distribution among similarly situated creditors. Valley Bank v. Vance (In re Vance), 721 F.2d 259, 260 (9th Cir.1983). There is evidence that Bozek directed BRNA to transfer bullion to him after learning of BRNA’s financial difficulties. More importantly, Bozek’s acquisition of bullion during the ninety day preference period allowed him to recover 100% of his claim against BRNA, while other customers were left to share equally in BRNA’s remaining assets. While we appreciate Bozek’s plight as a victim, we are also | [
{
"docid": "23132670",
"title": "",
"text": "debt; (3) made while the debtor was insolvent; (4) made on or within 90 days before the date of the bankruptcy petition, or between 90 days and one year if the creditor was an insider and had reasonable cause to believe the debtor was insolvent at the time of the transfer; and (5) that enables the creditor to receive more than it would have received if the transfer had not been made and the debtor’s estate were liquidated according to the provisions of the Code. The purpose of giving this power to the Trustee is two-fold. By discouraging the creditor “race to the courthouse”, Congress hoped that the financially troubled debtor might avoid a bankruptcy filing by securing the cooperation of his creditors. More important, the preference section is designed to “facilitate the prime bankruptcy policy of -equality of distribution of the debtor’s assets.” See H.R.Rep. No. 595, 95th Cong., 1st Sess. 177-178 (1977), reprinted in 1978 Code Cong. & Admin. News 5787, 6138. Property of the Debtor — In order for a transfer to be preferential, the transferee must receive property of the debtor, such that the transfer diminishes the fund from which similarly situated creditors are to be paid. See generally Brown v. First National Bank, 748 F.2d 490 (8th Cir. 1984); Schilling v. Electronic Realty Associates, Inc., (In re Hearn), 49 B.R. 143 (Bankr.W.D.Ky.1985). The transfers at issue here are evidenced by checks drawn on the accounts of either WWF or USSL, in the amounts alleged by the trustee as found above, and honored by the drawee bank. This constitutes prima facie proof that these defendants received transfers of the debtors’ property. See e.g. Merrill v. Abbott (In re Independent Clearing House), 41 B.R. 985, 1010-11 (Bankr.D.Utah 1984). None of the defendants dispute the basic facts of the transfers; however, a group of defendants contend that the transfer of funds to them should be characterized as the repayment of money obtained by fraud or other inequitable conduct of the debtors. See generally 4 Collier on Bankruptcy ¶ 547.19 and U 547.24 (15th ed.1985). Simply stated, the creditors’"
}
] | [
{
"docid": "12698019",
"title": "",
"text": "to dismember the debtor during its slide into bankruptcy and to further the prime bankruptcy policy of equal distribution among similarly situated creditors. Valley Bank v. Vance (In re Vance), 721 F.2d 259, 260 (9th Cir.1983). There is evidence that Bozek directed BRNA to transfer bullion to him after learning of BRNA’s financial difficulties. More importantly, Bozek’s acquisition of bullion during the ninety day preference period allowed him to recover 100% of his claim against BRNA, while other customers were left to share equally in BRNA’s remaining assets. While we appreciate Bozek’s plight as a victim, we are also mindful of our obligation to secure an equitable distribution of BRNA’s assets among all its creditors. Bozek also contends that his agreement with BRNA created an express trust under California law that prevented his funds and their product, the bullion, from becoming property of the debtor. Property held in trust by a bankruptcy debtor belongs to the beneficiary of the trust. Elliot v. Bumb, 356 F.2d 749, 753 (9th Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 67, 17 L.Ed.2d 66 (1966). State law determines whether a trust exists in federal bankruptcy proceedings. Toys “R” Us, Inc. v. Esgro, Inc. (Matter of Esgro, Inc.), 645 F.2d 794, 797 (9th Cir.1981). There is no indication that BRNA intended to assume the duties of a trustee. See Cal.Civ.Code § 2222 (West 1985) (repealed July 1,1987) (trust created as to trustee by conduct indicating his acceptance of trust). The member account program brochure specified that the Intermountain Depository Corporation would be a trustee for participants’ bullion stored at Perpetual Storage Incorporated. BRNA never stated it would be a trustee of the funds it received from program participants. Moreover, even if an express trust were created, Bozek would still have a duty under federal bankruptcy law to trace his funds to the bullion he received. Such a tracing requirement is necessary to further the Bankruptcy Code’s policy of equal distribution among similarly situated creditors. See Elliott, 356 F.2d at 755 (state trust law must be applied in a manner consistent with federal bankruptcy policy). Here,"
},
{
"docid": "12698023",
"title": "",
"text": "(1982). The terms “debt” and “claim” are coextensive. When a creditor has a claim against the debtor, the debtor owes a debt to the creditor. H.R.Rep. No. 595, 95th Cong. 1st Sess. 310, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6267; S.Rep. No. 989, 95th Cong., 2d Sess. 23, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5809; see also Henderson, 54 B.R. at 476. Bozek accrued a claim against BRNA when he paid for the bullion. Likewise, BRNA incurred a debt to Bozek as of this time. Therefore, the subsequent transfer of bullion was on account of an antecedent debt. 3. Exceptions to § 547(b) Bozek has the burden of proving that the bullion transfer is excepted from the trustee’s avoidance power. In re American Ambulance Service, Inc., 46 B.R. 658, 660 (Bankr.S.D.Cal.1985). Bozek first contends that the transfer cannot be set aside because it was a contemporaneous exchange for new value under 11 U.S. C. § 547(c)(1). In order for a transfer to come within this exception, it actually must be “substantially contemporaneous” with the giving of new value by the creditor. Ray v. Security Mut. Finance Corp. (In re Arnett), 731 F.2d 358, 364 (6th Cir.1984). Bozek has not shown that he received the bullion near the time he delivered funds to BRNA. Bozek last paid BRNA for bullion on June 6, 1983, but he did not receive the bullion until August 22, 1983. The seventy-seven day time span in this case between Bozek’s payments and BRNA’s bullion transfer is too great to be considered “substantially contemporaneous.” Bozek also argues that the transfer cannot be set aside because it was made in the ordinary course of business. See 11 U.S.C. § 547(c)(2) (1982). Recently, this court held that transfers made in a “Ponzi” scheme are not made in the ordinary course of business. Graulty v. Brooks (Matter of Bishop, Baldwin, Rewald, Dillingham & Wong, Inc.), 819 F.2d 214, 216 (9th Cir.1987). In Graulty, we explained that Congress intended the ordinary course of business exception to apply only to transfers by legitimate business enterprises. Id. at 217."
},
{
"docid": "12698015",
"title": "",
"text": "of the Intermountain Depository Corporation, its wholly owned subsidiary. In fact, BRNA never fulfilled its obligation to purchase and store bullion for program participants. Instead, BRNA co-mingled funds it received from program participants and deposited those monies into its own general bank accounts. Once in BRNA’s accounts, the participants’ funds were further comingled with income BRNA received from other sources. BRNA then used the money in its accounts to pay various expenses, including its general operating costs. BRNA did store a small amount of bullion at Perpetual Storage Incorporated. However, the amount of bullion BRNA stored at Perpetual Storage Incorporated was insufficient to cover storage orders placed by member account program participants. BRNA frequently had to purchase bullion on the open market to meet liquidation demands. Eventually, BRNA encountered financial difficulties and, on October 3, 1983, filed for relief under Chapter 11 of the Bankruptcy Code. On January 10, 1984, the bankruptcy court converted BRNA’s Chapter 11 reorganization to a Chapter 7 liquidation proceeding. Bozek became a member account program participant in December 1981. Thereafter, between 1981 and 1983, Bozek purchased bullion through BRNA. Like many program participants, Bozek asked BRNA to store his bullion. On August 22, 1983, forty-two days before BRNA filed for Chapter 11 relief, Bozek liquidated his member account and received bullion worth $212,138.60 from BRNA. Subsequently, on August 9, 1984, BRNA’s bankruptcy trustee brought this adversary action against Bozek under 11 U.S.C. § 547 (1982) to recover the bullion as a preferential transfer. The bankruptcy court granted summary judgment in favor of the trustee and the district court affirmed. We review the bankruptcy court’s grant of summary judgment de novo. See Nash v. Kester (In re Nash), 765 F.2d 1410, 1412 (9th Cir.1985). ANALYSIS A bankruptcy trustee may recover property for the benefit of the debtor’s estate if there (1) was a transfer; (2) of property of the debtor; (3) to or for the benefit of a creditor; (4) for or on account of an antecedent debt; (5) made while the debtor was insolvent; (6) made on or within ninety days before the date of"
},
{
"docid": "1144233",
"title": "",
"text": "2258, 110 L.Ed.2d 46 (1990) (property of the debt- or that is subject to 11 U.S.C. § 647(b) is best understood as property that would have been part of the bankruptcy estate had it not been transferred before the commencement of bankruptcy proceedings); In re Bullion Reserve of North America, 836 F.2d 1214, 1217 (9th Cir.), cert. denied, 486 U.S. 1056, 108 S.Ct. 2824, 100 L.Ed.2d 925 (1988) (“[generally, property belongs to the debtor for the purposes of § 547 if its transfer will deprive the bankruptcy estate of something which could otherwise be used to satisfy the claims of creditors.”); In re Bellanca Aircraft Corp., 850 F.2d 1275 (8th Cir.1988) (because property of the estate under 11 U.S.C. § 541 includes all legal or equitable interests of the debtor in property, property of debtor as used under 11 U.S.C. § 547(b), is equivalent to property of the estate); In re Lewis W. Shurtleff Inc., 778 F.2d 1416, 1419 (9th Cir.1985) (“[t]he term ‘property’ used in section 547 enjoys a similarly broad scope [as section 541].”); Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 69 L.Ed.2d 136 (1979) (property interests are created and defined by state law). As Butner mandates, the Court must first look to state law to determine the existence and scope of any interest in property. It is the Bankruptcy Code, however, that defines the scope of any property interest transferred to (or from) the estate. 11 U.S.C. § 541; BNT Terminals, 125 B.R. at 968. The earmarking doctrine may apply where funds are loaned or given to a debtor which are intended for a particular party. Coral Petroleum, 797 F.2d at 1356-56; BNT Terminals, 125 B.R. at 970; see In re Network 90 Degrees, Inc., 126 B.R. 990, 994 (N.D.Ill.1991). The Eighth Circuit noted: In every earmarking situation there are three necessary dramatis personae. They are the “old creditor”, (the preexisting creditor who is paid off within the 90-day period prior to bankruptcy), the “new creditor” or “new lender” who supplies the funds to pay off the old creditor, and the debtor."
},
{
"docid": "12698022",
"title": "",
"text": "§ 101(4). See H.R.Rep. No. 595, 95th Cong., 1st Sess. 309, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6266; S.Rep. No. 989, 95th Cong. 2d Sess. 21, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5808; see also Ohio v. Kovacs, 469 U.S. 274, 279, 105 S.Ct. 705, 708-09, 83 L.Ed.2d 649 (1985); Kallan v. Litas, 47 B.R. 977, 982-83 (N.D.Ill.1985). Under these definitions, it is clear that Bozek became a creditor when he transferred funds to BRNA for the purchase of bullion. At that moment, Bozek accrued a right to demand bullion from BRNA. This right, although unmatured, constituted a “claim” under the Bankruptcy Code. See Grover v. Gulino (In re Gulino), 779 F.2d 546, 551-52 (9th Cir.1985) (transferee becomes a creditor by making a payment under a contract to purchase property). Bozek’s contention that the transfer of bullion was not on account of an antecedent debt is also incorrect. “Antecedent debt” is not defined in the Bankruptcy Code. However, “debt” is defined as “a liability on a claim.” 11 U.S.C. § 101(11) (1982). The terms “debt” and “claim” are coextensive. When a creditor has a claim against the debtor, the debtor owes a debt to the creditor. H.R.Rep. No. 595, 95th Cong. 1st Sess. 310, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6267; S.Rep. No. 989, 95th Cong., 2d Sess. 23, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5809; see also Henderson, 54 B.R. at 476. Bozek accrued a claim against BRNA when he paid for the bullion. Likewise, BRNA incurred a debt to Bozek as of this time. Therefore, the subsequent transfer of bullion was on account of an antecedent debt. 3. Exceptions to § 547(b) Bozek has the burden of proving that the bullion transfer is excepted from the trustee’s avoidance power. In re American Ambulance Service, Inc., 46 B.R. 658, 660 (Bankr.S.D.Cal.1985). Bozek first contends that the transfer cannot be set aside because it was a contemporaneous exchange for new value under 11 U.S. C. § 547(c)(1). In order for a transfer to come within this exception, it actually must be “substantially"
},
{
"docid": "11766241",
"title": "",
"text": "We do not find Unicom to require a lessened standard of tracing. The trustee presented evidence to show that the transfers were made from a general account of Advent. This is sufficient to shift the burden to Taylor to demonstrate the existence of a genuine issue of material fact by tracing the funds allegedly held in constructive trust. In Bullion Reserve, the defendant in an action to recover a preferential transfer under section 547 contended that bullion he received from the debtor, BRNA, was not property of the debtor because it had been purchased with money fraudulently obtained from other participants. The Court of Appeals stated: “Here, the money BRNA used to purchase bullion came from comin-gled bank accounts under BRNA’s control. Because this money could have been used to pay other creditors, it presumptively constitutes property of the debtor’s estate.” 836 F.2d at 1217. In a footnote, the court stated: This presumption may be overcome in a variety of ways. For example, under a constructive trust theory, a program participant could claim any funds traced through BRNA’s comingled accounts. See Elliott v. Bumb, 356 F.2d 749, 754 (9th Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 67, 17 L.Ed.2d 66 (1966). But here, Bozek is unable to trace his funds to the bullion he received from BRNA. 836 F.2d at 1217 n. 3. See also R & T Roofing, 887 F.2d at 988 (preferential transfer case; the trustee’s showing that the payments had been made from a commercial business account shifted the burden to the opposing party to demonstrate an issue of fact as to whether the funds could be characterized as trust assets); Golden Triangle, 171 B.R. at 84 (Ashland, J., concurring). Taylor has failed to conduct any tracing. In fact, the evidence presented by Taylor indicates tracing is not possible. See, e.g., Task Force Report, Taylor’s ER at 614 (task force unable in most cases to correlate specific deposits with specific disbursements); Declaration of Roger Shlonsky, Trustee’s ER 6, at 403-04 (setting forth the information that would be required in order to determine whether the funds in"
},
{
"docid": "12698017",
"title": "",
"text": "the filing of the debtor’s bankruptcy petition; (7) that enables the creditor to receive more than he would receive if the transfer had not been made and the debtor’s estate liquidated according to the provisions of the bankruptcy code. 11 U.S.C. § 547(b) (1982). The burden of proving the existence of these elements is on the bankruptcy trustee. Grover v. Gulino (In re Gulino), 779 F.2d 546, 549 (9th Cir.1985). Bozek contends that the bankruptcy court erred by finding that (1) the bullion BRNA transferred to him was property of the debtor, (2) he was BRNA’s creditor, and (3) the transfer of bullion was on account of an antecedent debt. Bozek also contends that, if the transfer was a preference, it was excepted from avoidance under § 547(c)(1) and (2). 1. Property of the debtor Bozek argues that the bullion he received was not property of the debtor, BRNA, because it was purchased with money fraudulently obtained from member account program participants. In effect, he argues that he should be allowed to keep the bullion because he was a victim of BRNA’s misconduct. The term “property of the debtor” is not defined in the Bankruptcy Code. However, we define the term broadly. Elliot v. Frontier Properties (In re Lewis W. Shurtleff, Inc.), 778 F.2d 1416, 1419 (9th Cir.1985). Generally, property belongs to the debtor for purposes of § 547 if its transfer will deprive the bankruptcy estate of something which could otherwise be used to satisfy the claims of creditors. Cf. Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1355-56 (5th Cir.1986) (debtor has an interest in property under § 547 if the transfer diminishes the bankruptcy estate). Here, the money BRNA used to purchase bullion came from comingled bank accounts under BRNA’s control. Because this money could have been used to pay other creditors, it presumptively constitutes property of the debtor’s estate. Henderson v. Allred (In re Western World Funding, Inc.), 54 B.R. 470, 475 (Bankr.D. Nev.1985). The dual purpose of § 547 warrants reaching this result. That purpose is to discourage creditors from racing to the courthouse"
},
{
"docid": "14920528",
"title": "",
"text": "under § 547(b) is “that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings.” Stated differently, a transfer is subject to avoidance if the transfer diminished the resources from which all of a debtor’s creditors could have sought payment. Southmark Corp. v. Grosz (Matter of Southmark Corp.), 49 F.3d 1111, 1117 (5th Cir.1995); Hansen v. MacDonald Meat Co. (In re Kemp Pac. Fisheries, Inc.), 16 F.3d 313, 316 (9th Cir.1994) (“the transfer must diminish directly or indirectly the fund to which creditors of the same class can legally resort for the payment of their debts, to such an extent that it is impossible for other creditors of the same class to obtain as great a percentage as the favored one”); Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1355-56 (5th Cir.1986); Danning v. Bozek (In re Bullion Reserve of North America), 836 F.2d 1214, 1217 (9th Cir.1988). The Court is not convinced that DPC lacked an interest in the property transferred. In its confirmation order dated December 10, 1999, the Court concluded that, for all intents and purposes, the Debtors were operated as a single company. (Confirmation Order at 25). As the Court understands the Debtors’ pre-petition financial affairs, Foothill Capital loaned money to the Debtors under a “single borrowing based certificate,” and the funds were distributed to the various companies on as-needed basis. (Id.). The Court is under the impression that the money paid to Alagaseo originated from a common fund comprised of loan proceeds from Foothill Capital. While Alagasco’s reliance on Pearson Industries may be well-founded, the parties have not adequately addressed, either factually or legally, the issue of whether DPC had an interest in the property transferred. Resolution of the preference issue will have to await further development, as the Court is not prepared to resolve the issue based on the present record. Conclusion Having given this matter its careful consideration, the Court concludes that the Trustee’s motion for leave to amend complaint should be, and hereby is, GRANTED. As for Alagasco’s motion for summary"
},
{
"docid": "14920527",
"title": "",
"text": "significance to DP Fitness’ satisfaction of DPC’s debt. Alagasco cites Barber v. Riverside International Trucks, Inc. (In re Pearson Industries, Inc.), 142 B.R. 831, 845 (Bankr.C.D.Ill.1992), for the proposition that when a debtor’s obligation is paid by a related, but legally separate, entity which also happens to be in bankruptcy, there is no transfer subject to recovery under § 547. Generally speaking, a third party’s payment of a debtor’s obligation does not constitute a preferential transfer, as the debtor’s estate does not suffer a loss in that situation. See Matter of Erie Forge & Steel Corp., 456 F.2d 801, 806 n. 9 (3d Cir.1972); Stingley v. AlliedSignal, Inc. (In re Libby Int’l, Inc.), 247 B.R. 463, 466, (8th Cir. BAP 2000). Notwithstanding the general rule with respect to third party payors, for purposes of § 547(b), the issue is whether DPC had an interest in the property transferred. In Begier v. Internal Revenue Service, 496 U.S. 53, 58, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990), the Supreme Court concluded that the “property” subject to avoidance under § 547(b) is “that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings.” Stated differently, a transfer is subject to avoidance if the transfer diminished the resources from which all of a debtor’s creditors could have sought payment. Southmark Corp. v. Grosz (Matter of Southmark Corp.), 49 F.3d 1111, 1117 (5th Cir.1995); Hansen v. MacDonald Meat Co. (In re Kemp Pac. Fisheries, Inc.), 16 F.3d 313, 316 (9th Cir.1994) (“the transfer must diminish directly or indirectly the fund to which creditors of the same class can legally resort for the payment of their debts, to such an extent that it is impossible for other creditors of the same class to obtain as great a percentage as the favored one”); Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1355-56 (5th Cir.1986); Danning v. Bozek (In re Bullion Reserve of North America), 836 F.2d 1214, 1217 (9th Cir.1988). The Court is not convinced that DPC lacked an interest in the property transferred. In its"
},
{
"docid": "12698018",
"title": "",
"text": "because he was a victim of BRNA’s misconduct. The term “property of the debtor” is not defined in the Bankruptcy Code. However, we define the term broadly. Elliot v. Frontier Properties (In re Lewis W. Shurtleff, Inc.), 778 F.2d 1416, 1419 (9th Cir.1985). Generally, property belongs to the debtor for purposes of § 547 if its transfer will deprive the bankruptcy estate of something which could otherwise be used to satisfy the claims of creditors. Cf. Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1355-56 (5th Cir.1986) (debtor has an interest in property under § 547 if the transfer diminishes the bankruptcy estate). Here, the money BRNA used to purchase bullion came from comingled bank accounts under BRNA’s control. Because this money could have been used to pay other creditors, it presumptively constitutes property of the debtor’s estate. Henderson v. Allred (In re Western World Funding, Inc.), 54 B.R. 470, 475 (Bankr.D. Nev.1985). The dual purpose of § 547 warrants reaching this result. That purpose is to discourage creditors from racing to the courthouse to dismember the debtor during its slide into bankruptcy and to further the prime bankruptcy policy of equal distribution among similarly situated creditors. Valley Bank v. Vance (In re Vance), 721 F.2d 259, 260 (9th Cir.1983). There is evidence that Bozek directed BRNA to transfer bullion to him after learning of BRNA’s financial difficulties. More importantly, Bozek’s acquisition of bullion during the ninety day preference period allowed him to recover 100% of his claim against BRNA, while other customers were left to share equally in BRNA’s remaining assets. While we appreciate Bozek’s plight as a victim, we are also mindful of our obligation to secure an equitable distribution of BRNA’s assets among all its creditors. Bozek also contends that his agreement with BRNA created an express trust under California law that prevented his funds and their product, the bullion, from becoming property of the debtor. Property held in trust by a bankruptcy debtor belongs to the beneficiary of the trust. Elliot v. Bumb, 356 F.2d 749, 753 (9th Cir.), cert. denied, 385 U.S. 829, 87"
},
{
"docid": "12698025",
"title": "",
"text": "We also noted that the Bankruptcy Code’s purpose was not to protect one victim of a debtor’s fraud at the expense of others. Id. Our reasoning in Graulty applies here. BRNA was a fraudulent business of the type Congress did not intend to protect under § 547(c)(2). Moreover, it would be inequitable to allow Bozek to obtain a 100% recovery on his claim while relegating other defrauded program participants to general unsecured creditor status in BRNA’s bankruptcy proceeding. Equity requires that all these creditors share equally in whatever assets are available. Id. at 217. AFFIRMED. . Bozek sent funds to BRNA on December 21, 1981; March 19 and June 14, 1982; and June 6, 1983. . The Bankruptcy Code was amended by the Bankruptcy Amendments and Federal Judgeship Act of 1984. Pub.L. No. 98-353, § 553(a), 98 Stat. 333, 392 (1984). However, those amendments do not apply to this case because BRNA filed its bankruptcy petition in 1983. Id.; see Henderson v. Allred (In re Western World Funding, Inc.), 54 B.R. 470, 473 n. 1 (Bankr.D. Nev.1985). Accordingly, all references in this decision to the Bankruptcy Code are to the Bankruptcy Reform Act of 1978, 11 U.S.C. §§ 101-151326 (1982). . This presumption may be overcome in a variety of ways. For example, under a constructive trust theory, a program participant could claim any funds traced through BRNA's comingled accounts. See Elliot v. Bumb, 356 F.2d 749, 754 (9th Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 67, 17 L.Ed.2d 66 (1966). But here, Bozek is unable to trace his funds to the bullion he received from BRNA. . Apart from the brochure, no other document mentions the existence of a trust relationship. . California trust law is not to the contrary. See, e.g., Kobida v. Hinkelmann, 53 Cal.App.2d 186, 195, 127 P.2d 657, 661-62 (1942) (noting that when a trustee is insolvent, and the rights of other creditors are involved, a beneficiary must trace his funds through a trustee's comin-gled account). . To support his contention that he is not BRNA’s creditor, Bozek erroneously relies on Richardson v. Shaw,"
},
{
"docid": "12698021",
"title": "",
"text": "Bozek cannot trace the money he gave BRNA to the bullion he received. Therefore, the bullion is property of the debtor under § 547. 2. Creditor and Antecedent Debt Bozek contends he is not a creditor and that the transfer was not on account of an antecedent debt because BRNA did not owe him anything before making the bullion transfer. Bozek bases his argument on the idea that he never had a creditor’s claim against BRNA because bullion was transferred to him upon demand and he did not suffer economic injury. This argument ignores the Bankruptcy Code’s broad definitions. A “creditor” is defined as an “entity that has a claim against the debtor.” 11 U.S.C. § 101(9) (1982). “Claim” is defined as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” 11 U.S.C. § 101(4) (1982). The legislative history of the Bankruptcy Code indicates that Congress intended to provide the broadest possible definition of “claim” when it enacted § 101(4). See H.R.Rep. No. 595, 95th Cong., 1st Sess. 309, reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6266; S.Rep. No. 989, 95th Cong. 2d Sess. 21, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5808; see also Ohio v. Kovacs, 469 U.S. 274, 279, 105 S.Ct. 705, 708-09, 83 L.Ed.2d 649 (1985); Kallan v. Litas, 47 B.R. 977, 982-83 (N.D.Ill.1985). Under these definitions, it is clear that Bozek became a creditor when he transferred funds to BRNA for the purchase of bullion. At that moment, Bozek accrued a right to demand bullion from BRNA. This right, although unmatured, constituted a “claim” under the Bankruptcy Code. See Grover v. Gulino (In re Gulino), 779 F.2d 546, 551-52 (9th Cir.1985) (transferee becomes a creditor by making a payment under a contract to purchase property). Bozek’s contention that the transfer of bullion was not on account of an antecedent debt is also incorrect. “Antecedent debt” is not defined in the Bankruptcy Code. However, “debt” is defined as “a liability on a claim.” 11 U.S.C. § 101(11)"
},
{
"docid": "12698020",
"title": "",
"text": "S.Ct. 67, 17 L.Ed.2d 66 (1966). State law determines whether a trust exists in federal bankruptcy proceedings. Toys “R” Us, Inc. v. Esgro, Inc. (Matter of Esgro, Inc.), 645 F.2d 794, 797 (9th Cir.1981). There is no indication that BRNA intended to assume the duties of a trustee. See Cal.Civ.Code § 2222 (West 1985) (repealed July 1,1987) (trust created as to trustee by conduct indicating his acceptance of trust). The member account program brochure specified that the Intermountain Depository Corporation would be a trustee for participants’ bullion stored at Perpetual Storage Incorporated. BRNA never stated it would be a trustee of the funds it received from program participants. Moreover, even if an express trust were created, Bozek would still have a duty under federal bankruptcy law to trace his funds to the bullion he received. Such a tracing requirement is necessary to further the Bankruptcy Code’s policy of equal distribution among similarly situated creditors. See Elliott, 356 F.2d at 755 (state trust law must be applied in a manner consistent with federal bankruptcy policy). Here, Bozek cannot trace the money he gave BRNA to the bullion he received. Therefore, the bullion is property of the debtor under § 547. 2. Creditor and Antecedent Debt Bozek contends he is not a creditor and that the transfer was not on account of an antecedent debt because BRNA did not owe him anything before making the bullion transfer. Bozek bases his argument on the idea that he never had a creditor’s claim against BRNA because bullion was transferred to him upon demand and he did not suffer economic injury. This argument ignores the Bankruptcy Code’s broad definitions. A “creditor” is defined as an “entity that has a claim against the debtor.” 11 U.S.C. § 101(9) (1982). “Claim” is defined as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” 11 U.S.C. § 101(4) (1982). The legislative history of the Bankruptcy Code indicates that Congress intended to provide the broadest possible definition of “claim” when it enacted"
},
{
"docid": "12698014",
"title": "",
"text": "PREGERSON, Circuit Judge: Theodore P. Bozek appeals from a district court’s order affirming a bankruptcy court’s grant of summary judgment in favor of the bankruptcy trustee for Bullion Reserve of North America (BRNA). The trustee, Curtis B. Danning, sued Bozek under 11 U.S.C. § 547(b) to set aside and recover an alleged preferential transfer made by BRNA to Bozek. We affirm. BACKGROUND BRNA was a California corporation that purported to be in the business of buying precious metals (bullion) for the public through a “member account program.” Customers became member account program participants by filling out a short application and paying a nominal administrative fee. Thereafter, program participants were entitled to purchase bullion through BRNA at wholesale prices fixed in the international market. BRNA charged a commission on all bullion orders it executed. BRNA published a brochure describing its program. The brochure warranted that, upon request, BRNA would segregate and store a program participant’s bullion in a storage vault at Perpetual Storage Incorporated. BRNA also represented that the stored bullion would be under the trusteeship of the Intermountain Depository Corporation, its wholly owned subsidiary. In fact, BRNA never fulfilled its obligation to purchase and store bullion for program participants. Instead, BRNA co-mingled funds it received from program participants and deposited those monies into its own general bank accounts. Once in BRNA’s accounts, the participants’ funds were further comingled with income BRNA received from other sources. BRNA then used the money in its accounts to pay various expenses, including its general operating costs. BRNA did store a small amount of bullion at Perpetual Storage Incorporated. However, the amount of bullion BRNA stored at Perpetual Storage Incorporated was insufficient to cover storage orders placed by member account program participants. BRNA frequently had to purchase bullion on the open market to meet liquidation demands. Eventually, BRNA encountered financial difficulties and, on October 3, 1983, filed for relief under Chapter 11 of the Bankruptcy Code. On January 10, 1984, the bankruptcy court converted BRNA’s Chapter 11 reorganization to a Chapter 7 liquidation proceeding. Bozek became a member account program participant in December 1981. Thereafter,"
},
{
"docid": "12698028",
"title": "",
"text": "However, the record indicates BRNA did not buy and store metal for Bozek upon receiving his money. Rather, BRNA comingled Bozek’s money with that of other customers and purchased bullion for storage in very small amounts. Therefore, it cannot be said that BRNA purchased bullion for any particular customer. . A \"Ponzi” scheme is any sort of fraudulent arrangement that uses later acquired funds or products to pay off previous investors. See Merrill v. Abbott (In re Independent Clearing House), 41 B.R. 985, 994 n. 12 (Bankr.D.Utah 1984) (describing history of \"Ponzi” schemes), modified, 62 B.R. 118 (D.Utah 1986). The record indicates that BRNA was conducting such a scheme when it used newly acquired funds, from its comingled accounts, to buy bullion for customers who demanded their metal. .The ordinary course of business exception is inapplicable for another reason. The Bankruptcy Code only protects a preferential transfer that is made within forty-five days after the debtor incurs a debt to the creditor. 11 U.S.C. § 547(c)(2)(B) (1982). Here, BRNA owed a debt to Bozek for more than forty-five days before transferring bullion to him."
},
{
"docid": "12698016",
"title": "",
"text": "between 1981 and 1983, Bozek purchased bullion through BRNA. Like many program participants, Bozek asked BRNA to store his bullion. On August 22, 1983, forty-two days before BRNA filed for Chapter 11 relief, Bozek liquidated his member account and received bullion worth $212,138.60 from BRNA. Subsequently, on August 9, 1984, BRNA’s bankruptcy trustee brought this adversary action against Bozek under 11 U.S.C. § 547 (1982) to recover the bullion as a preferential transfer. The bankruptcy court granted summary judgment in favor of the trustee and the district court affirmed. We review the bankruptcy court’s grant of summary judgment de novo. See Nash v. Kester (In re Nash), 765 F.2d 1410, 1412 (9th Cir.1985). ANALYSIS A bankruptcy trustee may recover property for the benefit of the debtor’s estate if there (1) was a transfer; (2) of property of the debtor; (3) to or for the benefit of a creditor; (4) for or on account of an antecedent debt; (5) made while the debtor was insolvent; (6) made on or within ninety days before the date of the filing of the debtor’s bankruptcy petition; (7) that enables the creditor to receive more than he would receive if the transfer had not been made and the debtor’s estate liquidated according to the provisions of the bankruptcy code. 11 U.S.C. § 547(b) (1982). The burden of proving the existence of these elements is on the bankruptcy trustee. Grover v. Gulino (In re Gulino), 779 F.2d 546, 549 (9th Cir.1985). Bozek contends that the bankruptcy court erred by finding that (1) the bullion BRNA transferred to him was property of the debtor, (2) he was BRNA’s creditor, and (3) the transfer of bullion was on account of an antecedent debt. Bozek also contends that, if the transfer was a preference, it was excepted from avoidance under § 547(c)(1) and (2). 1. Property of the debtor Bozek argues that the bullion he received was not property of the debtor, BRNA, because it was purchased with money fraudulently obtained from member account program participants. In effect, he argues that he should be allowed to keep the bullion"
},
{
"docid": "12698024",
"title": "",
"text": "contemporaneous” with the giving of new value by the creditor. Ray v. Security Mut. Finance Corp. (In re Arnett), 731 F.2d 358, 364 (6th Cir.1984). Bozek has not shown that he received the bullion near the time he delivered funds to BRNA. Bozek last paid BRNA for bullion on June 6, 1983, but he did not receive the bullion until August 22, 1983. The seventy-seven day time span in this case between Bozek’s payments and BRNA’s bullion transfer is too great to be considered “substantially contemporaneous.” Bozek also argues that the transfer cannot be set aside because it was made in the ordinary course of business. See 11 U.S.C. § 547(c)(2) (1982). Recently, this court held that transfers made in a “Ponzi” scheme are not made in the ordinary course of business. Graulty v. Brooks (Matter of Bishop, Baldwin, Rewald, Dillingham & Wong, Inc.), 819 F.2d 214, 216 (9th Cir.1987). In Graulty, we explained that Congress intended the ordinary course of business exception to apply only to transfers by legitimate business enterprises. Id. at 217. We also noted that the Bankruptcy Code’s purpose was not to protect one victim of a debtor’s fraud at the expense of others. Id. Our reasoning in Graulty applies here. BRNA was a fraudulent business of the type Congress did not intend to protect under § 547(c)(2). Moreover, it would be inequitable to allow Bozek to obtain a 100% recovery on his claim while relegating other defrauded program participants to general unsecured creditor status in BRNA’s bankruptcy proceeding. Equity requires that all these creditors share equally in whatever assets are available. Id. at 217. AFFIRMED. . Bozek sent funds to BRNA on December 21, 1981; March 19 and June 14, 1982; and June 6, 1983. . The Bankruptcy Code was amended by the Bankruptcy Amendments and Federal Judgeship Act of 1984. Pub.L. No. 98-353, § 553(a), 98 Stat. 333, 392 (1984). However, those amendments do not apply to this case because BRNA filed its bankruptcy petition in 1983. Id.; see Henderson v. Allred (In re Western World Funding, Inc.), 54 B.R. 470, 473 n. 1"
},
{
"docid": "12698027",
"title": "",
"text": "209 U.S. 365, 28 S.Ct. 512, 52 L.Ed. 835 (1908). In Richardson, the Supreme Court found that no preference arose when an insolvent stockbroker returned stock he held for a client. The Court held that the broker was \"essentially a pledgee.” 209 U.S. at 380, 28 S.Ct. at 517. The Court also implied that the client was not a creditor because he held a pledgor's interest in the stock he received. Id. However, Richardson was decided under prior bankruptcy law when the definition of “claim\" was not as broad. See Matter of Mandalay Shores Cooperative Housing Association, 54 B.R. 632, 635 (Bankr.M.D.Fla.1984) (Congress intended to give \"claim\" in the Bankruptcy Code a broader definition than under previous law). Under modern bankruptcy law, the Richardson client would be a creditor because his pledgor’s interest would be a claim. See Herman Cantor Corp. v. Central Fidelity Bank (In re Herman Cantor Corp.), 15 B.R. 747, 749 (Bankr.E.D.Va.1981). . Bozek claims that he received bullion at Perpetual Storage Incorporated at the time that he delivered funds to BRNA. However, the record indicates BRNA did not buy and store metal for Bozek upon receiving his money. Rather, BRNA comingled Bozek’s money with that of other customers and purchased bullion for storage in very small amounts. Therefore, it cannot be said that BRNA purchased bullion for any particular customer. . A \"Ponzi” scheme is any sort of fraudulent arrangement that uses later acquired funds or products to pay off previous investors. See Merrill v. Abbott (In re Independent Clearing House), 41 B.R. 985, 994 n. 12 (Bankr.D.Utah 1984) (describing history of \"Ponzi” schemes), modified, 62 B.R. 118 (D.Utah 1986). The record indicates that BRNA was conducting such a scheme when it used newly acquired funds, from its comingled accounts, to buy bullion for customers who demanded their metal. .The ordinary course of business exception is inapplicable for another reason. The Bankruptcy Code only protects a preferential transfer that is made within forty-five days after the debtor incurs a debt to the creditor. 11 U.S.C. § 547(c)(2)(B) (1982). Here, BRNA owed a debt to Bozek for"
},
{
"docid": "11766240",
"title": "",
"text": "which states in its entirety: On the facts of this case we hold that, to the extent Mitsui [the trust beneficiary] was required to “trace” its money wrong fully withheld by Unicom, see In re Esgro, Inc., 645 F.2d at 797-98; In re Sierra Steel, Inc., 96 B.R. at 273-74, it has done so. 13 F.3d at 325 n. 5. Taylor notes that in Unicom, the check wrongfully obtained by the debtor was deposited in the debtor’s general checking account. On the basis of this factual similarity, Taylor contends it has traced the funds to the extent necessary. Unicom nowhere discusses tracing other than in the footnote. It does not say tracing is unnecessary, but that it has been done to the extent necessary. It does not reject or distinguish prior Ninth Circuit precedent, but suggests that precedent has been complied with. Unicom thus does not demonstrate any intent to lessen the normal standards required for tracing. Facts may have existed, for example, for the court to conclude that the “lowest intermediate balance” rule applied. We do not find Unicom to require a lessened standard of tracing. The trustee presented evidence to show that the transfers were made from a general account of Advent. This is sufficient to shift the burden to Taylor to demonstrate the existence of a genuine issue of material fact by tracing the funds allegedly held in constructive trust. In Bullion Reserve, the defendant in an action to recover a preferential transfer under section 547 contended that bullion he received from the debtor, BRNA, was not property of the debtor because it had been purchased with money fraudulently obtained from other participants. The Court of Appeals stated: “Here, the money BRNA used to purchase bullion came from comin-gled bank accounts under BRNA’s control. Because this money could have been used to pay other creditors, it presumptively constitutes property of the debtor’s estate.” 836 F.2d at 1217. In a footnote, the court stated: This presumption may be overcome in a variety of ways. For example, under a constructive trust theory, a program participant could claim any funds"
},
{
"docid": "12698026",
"title": "",
"text": "(Bankr.D. Nev.1985). Accordingly, all references in this decision to the Bankruptcy Code are to the Bankruptcy Reform Act of 1978, 11 U.S.C. §§ 101-151326 (1982). . This presumption may be overcome in a variety of ways. For example, under a constructive trust theory, a program participant could claim any funds traced through BRNA's comingled accounts. See Elliot v. Bumb, 356 F.2d 749, 754 (9th Cir.), cert. denied, 385 U.S. 829, 87 S.Ct. 67, 17 L.Ed.2d 66 (1966). But here, Bozek is unable to trace his funds to the bullion he received from BRNA. . Apart from the brochure, no other document mentions the existence of a trust relationship. . California trust law is not to the contrary. See, e.g., Kobida v. Hinkelmann, 53 Cal.App.2d 186, 195, 127 P.2d 657, 661-62 (1942) (noting that when a trustee is insolvent, and the rights of other creditors are involved, a beneficiary must trace his funds through a trustee's comin-gled account). . To support his contention that he is not BRNA’s creditor, Bozek erroneously relies on Richardson v. Shaw, 209 U.S. 365, 28 S.Ct. 512, 52 L.Ed. 835 (1908). In Richardson, the Supreme Court found that no preference arose when an insolvent stockbroker returned stock he held for a client. The Court held that the broker was \"essentially a pledgee.” 209 U.S. at 380, 28 S.Ct. at 517. The Court also implied that the client was not a creditor because he held a pledgor's interest in the stock he received. Id. However, Richardson was decided under prior bankruptcy law when the definition of “claim\" was not as broad. See Matter of Mandalay Shores Cooperative Housing Association, 54 B.R. 632, 635 (Bankr.M.D.Fla.1984) (Congress intended to give \"claim\" in the Bankruptcy Code a broader definition than under previous law). Under modern bankruptcy law, the Richardson client would be a creditor because his pledgor’s interest would be a claim. See Herman Cantor Corp. v. Central Fidelity Bank (In re Herman Cantor Corp.), 15 B.R. 747, 749 (Bankr.E.D.Va.1981). . Bozek claims that he received bullion at Perpetual Storage Incorporated at the time that he delivered funds to BRNA."
}
] |
734310 | "he or she has: (i) taken intentional action; (ii) the action was ""expressly aimed"" at New Mexico; and (iii) the action was taken with the knowledge that ""the brunt of th[e] injury"" would be felt in New Mexico. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1072 (quoting Calder v. Jones, 465 U.S. 783, 789-90, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) ). Although agreements alone are likely to be insufficient to establish minimum contacts, "" 'parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities.' "" REDACTED v. Rudzewicz, 471 U.S. at 473, 478, 105 S.Ct. 2174 ). The mere foreseeability of harm occurring in a particular forum will not support a finding of minimum contacts. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 295, 100 S.Ct. 559 (holding that, although ""an automobile is mobile by its very design and purpose,"" thus indicating that it is foreseeable that a particular automobile may cause injury in a forum state, "" 'foreseeability' alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause""). ""[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather," | [
{
"docid": "4246750",
"title": "",
"text": "The policies therefore expressly contemplate the Insurers’ participation in litigation in foreign forums, even if they do not establish an obligation to participate. We recognize that we have criticized similar reasoning in other circuits’ decisions to the extent it relies on the foreseeability of litigation to establish an insurance company’s minimum contacts with a forum state. OMI Holdings, Inc., 149 F.3d at 1094-95. As the Supreme Court has directed, “ ‘foreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause.” World-Wide Volkswagen, 444 U.S. at 295, 100 S.Ct. 559. In Worldr-Wide Volkswagen, for example, the mere fore seeability that an individual could drive a car into a particular state was insufficient to create personal jurisdiction over automobile distributors for a products liability claim. Id. at 298, 100 S.Ct. 559. The Court also noted, however, that foreseeability is not “wholly irrelevant.” Id. at 297, 100 S.Ct. 559. Foreseeability that an event may occur over which a defendant has no control is distinct from foreseeability of litigation based on the defendant’s own actions. See id. When an insurer includes a broad territory-of-coverage clause in an insurance policy, the foreseeability of litigation in foreign states is based on the insurer’s own actions. Unlike an automobile distributor, an insurer can control where it is subject to suit by restricting its coverage to certain jurisdictions. Although litigation involving the insurer’s participation may be merely foreseeable, the fact that the insurer purposefully bargains and contracts for that participation creates contacts with the forum states within the scope of the policy’s territory of coverage. In other words, the insurer’s “willingness to be called into court in the foreign forum” is “an express feature of its policy.” Rossman, 832 F.2d at 286. Unlike the product distributor in World-Wide Volkswagen, “an insurer has the contractual ability to control the territory into which its ‘product’ — the indemnification and defense of claims- — will travel.” Farmers, 907 F.2d at 914; see also Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 628 F.2d 652, 670 (1st Cir.1980) (“[A]n insurer is not at the mercy of"
}
] | [
{
"docid": "14842214",
"title": "",
"text": "90 L.Ed. 95 (1945); see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The minimum contacts requirement is also known as “fair warning,” such that the defendant’s contacts with the forum should be sufficient to make it reasonable to be haled into court there. Burger King, 471 U.S. at 474, 105 S.Ct. 2174. The “ ‘fair warning’ requirement is satisfied if the defendant has ‘purposefully directed’ his activities at the residents of the forum ... and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Id. (internal citations omitted); see also World-Wide Volkswagen, 444 U.S. at 297-98, 100 S.Ct. 559 (finding purposefully directed activities where defendant delivered products into stream of commerce with expectation they would be purchased by residents of forum); Calder, 465 U.S. at 789-90, 104 S.Ct. 1482 (finding publishing activities outside of forum were calculated to cause injury to plaintiff in forum where she lived and which also had the highest subscription rate). “Although it has been argued that foreseeability of causing injury in another State should be sufficient to establish such contacts there when policy considerations so require, the Court has consistently held that this kind of foreseeability is not a ‘sufficient benchmark’ for exercising personal jurisdiction.” Burger King, 471 U.S. at 474, 105 S.Ct. 2174 (quoting World-Wide Volkswagen, 444 U.S. at 295, 100 S.Ct. 559). In every case, there must be “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). For purposes of the minimum contacts inquiry, a distinction is made between specific and general jurisdiction. Specific jurisdiction exists when the forum exercises jurisdiction over the defendant in a suit arising out of the defendant’s contacts with that forum. Metro. Life Ins. 84 F.3d at 567-68. General jurisdiction is based on the defendant’s general business contacts with the forum; because the defendant’s contacts are not"
},
{
"docid": "8502832",
"title": "",
"text": "consent to the exercise of jurisdiction for claims related to those contacts. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1078. Thus, “[s]uch contacts may give rise to personal jurisdiction over a non-resident defendant either generally, for any lawsuit, or specifically, solely for lawsuits arising out of particular forum-related activities.” Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir.2011). A court may assert specific jurisdiction “if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citations omitted)(internal quotation marks omitted). In the tort context, a defendant has “purposefully directed” his activities at New Mexico or its residents when he or she has: (i) taken intentional action; (ii) the action was “expressly aimed” at New Mexico; and (in) the action was taken with the knowledge that “the brunt of th[e] injury” would be felt in New Mexico. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1072 (quoting Colder v. Jones, 465 U.S. 783, 789-90, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)). These general principles of personal jurisdiction are modified in cases involving the internet. In these cases, the Tenth Circuit focuses whether the website or internet user “intentionally directed] his/ her/its activity or operation at the forum state rather than just having the activity or operation accessible there.” Shrader v. Biddinger, 633 F.3d 1235, 1240 (10th Cir.2011) (emphasis in original). Simply posting defamatory statements on a website will not, standing alone, establish personal jurisdiction over the poster in any state where the post may be read. See Shrader v. Biddinger, 633 F.3d at 1241. Instead, courts consider whether the “defendant deliberately directed its message at an audience in the forum state and intended harm to the plaintiff occurring primarily or particularly in the forum state.” Shrader v. Biddinger, 633 F.3d at 1241. In short, “the forum state itself must be the focal point of the tort.” Shrader v. Bidding-er, 633"
},
{
"docid": "10117647",
"title": "",
"text": "New Mexico courts as far as constitutionally permissible.” Tercero v. Roman Catholic Diocese of Norwich, Conn., 2002-NMSC-018, ¶ 6, 132 N.M. 312, 48 P.3d 50, 54. Consequently, the Court “need not conduct a statutory analysis apart from the due process analysis.” Marcus Food Co. v. DiPanfilo, 671 F.3d at 1166 (internal quotation marks omitted). 2. General and Specific Jurisdiction. Depending on the character and extent of a defendant’s contacts, a court may exercise general or specific personal jurisdiction. See Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). General jurisdiction is based on an out-of-state defendant’s “continuous and systematic” contacts with the forum state, and does not require that the claim be related to those contacts. Specific jurisdiction, on the other hand, is premised on something of a quid pro quo: in exchange for “benefitting” from some purposive conduct directed at the forum state, a party is deemed to consent to the exercise of jurisdiction for claims related to those contacts. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1078 (emphasis in original). Thus, “[s]uch contacts may give rise to personal jurisdiction over a.nonresident defendant either generally, for any lawsuit, or specifically, solely for lawsuits arising out of particular forum-related activities.” Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir.2011). A court may assert specific jurisdiction “if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. at 472, 105 S.Ct. 2174 (citations omitted)(internal quotation marks omitted). In the tort context, a defendant has “purposefully directed” his activities at New Mexico or its residents when1 he or She has: (i) taken intentional action; (ii) the action was “expressly aimed” at New Mexico; and (iii) the action was taken with the knowledge that “the brunt of th[e] injury” would be felt in New Mexico. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1072 (quoting Calder v. Jones, 465 U.S. 783, 789-90,"
},
{
"docid": "8502834",
"title": "",
"text": "F.3d at 1244 (emphasis in original)(quoting Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1074 n. 9) (internal quotation marks omitted). 3. Due Process and Personal Jurisdiction. The due process analysis is also two-fold: First, [the defendant] must have “minimum contacts” with the forum state, demonstrating that he “purposefully availed” himself of the protections or benefits of the state’s laws and “should reasonably anticipate being haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 ... (1985); see also Emp’rs Mut. Cas. Co., 618 F.3d at 1159-60 (reiterating the Burger King standard). Although agreements alone are likely to be insufficient to establish minimum contacts, “ ‘parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities.’ ” TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d 1282, 1287-88 (10th Cir.2007) (quoting Burger King, 471 U.S. at 473, 478, 105 S.Ct. 2174). Marcus Food Co. v. DiPanfilo, 671 F.3d at 1166. A defendant may reasonably anticipate being subject to suit in the forum state “if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 ... (1985) (internal citation omitted); see also Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 ... (1958) (“[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State.”). TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d at 1287-88. The Su preme Court of the United States has held that the mere foreseeability of harm occurring in a particular forum will not support a finding of minimum contacts. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct."
},
{
"docid": "8502837",
"title": "",
"text": "N.M. 363, 670 P.2d 974. “[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 297, 100 S.Ct. 559. As Tenth Circuit has further explained, because “mere foreseeability” is not sufficient to establish minimum contacts, a plaintiff “must establish ... not only that defendants foresaw (or knew) that the effects of their conduct would be felt in the forum state, but also that defendants undertook intentional actions that were expressly aimed at that forum state.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1077. Similarly, to find general jurisdiction over a defendant, contacts must be “continuous and systematic” — therefore, “[s]imply because a defendant has a contractual relationship and business dealings with a person or entity in the forum state does not subject him to general jurisdiction there”; “correspondence with a forum resident does not support general jurisdiction”; and “sporadic or isolated visits to the forum state will not subject the defendant to general jurisdiction,” because a “[defendant’s] lack of a regular place of business in [the forum state] is significant, and is not overcome by a few visits.” Shrader v. Biddinger, 633 F.3d at 1247. “[G]eneral jurisdiction over a web site that has no intrinsic connection with a forum state requires commercial activity carried on with forum residents in such a sustained manner that it is tantamount to actual physical presence within the state.” Shrader v. Biddinger, 633 F.3d at 1246. In Silver v. Brown, the Court considered whether it had specific personal jurisdiction over defendants who allegedly slandered, defamed, and caused the plaintiff — Michael Silver — duress, by posting a blog on the internet that portrayed him in a negative light. See Silver v. Brown, 678 F.Supp.2d 1187, 1204 (D.N.M.2009) (Browning, J.), aff'd in part and rev’d in part, 382 Fed.Appx. 723 (10th Cir.2010) (unpublished). The"
},
{
"docid": "8502836",
"title": "",
"text": "559, 62 L.Ed.2d 490 (1980) (holding that, although “an automobile is mobile by its very design and purpose,” thus indicating that it is foreseeable that a particular automobile may cause injury in a forum state, “ ‘foreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause”). In Roberts v. Piper Aircraft Corp., 1983-NMCA-110, 100 N.M. 363, 670 P.2d 974 (CtApp.1983), the Court of Appeals of New Mexico similarly rejected the argument that foreseeability could establish minimum contacts, and found no personal jurisdiction or minimum contacts in the following circumstances: [T]he record is devoid of any contact between Scenic Aviation and New Mexico. Scenic Aviation is a fixed-base operator selling aviation fuel in Las Vegas, Nevada. There is no evidence that Scenic Aviation advertises in New Mexico, or sells fuel to New Mexico residents. Without “contacts, ties, or relations” with New Mexico the fact that fuel sold by Scenic Aviation found its way into our state does not support a valid exercise of personal jurisdiction. 1983-NMCA-l 10, ¶ 19, 100 N.M. 363, 670 P.2d 974. “[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 297, 100 S.Ct. 559. As Tenth Circuit has further explained, because “mere foreseeability” is not sufficient to establish minimum contacts, a plaintiff “must establish ... not only that defendants foresaw (or knew) that the effects of their conduct would be felt in the forum state, but also that defendants undertook intentional actions that were expressly aimed at that forum state.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1077. Similarly, to find general jurisdiction over a defendant, contacts must be “continuous and systematic” — therefore, “[s]imply because a defendant has a contractual relationship and business dealings with a person or entity in the forum state does not subject him"
},
{
"docid": "10117652",
"title": "",
"text": "forum state, “ ‘foreseeability1 alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause”). In Roberts v. Piper Aircraft Corp., 1983-NMCA-110, 100 N.M. 363, 670 P.2d 974, the Court of Appeals of New Mexico similarly rejected the argument that; foreseeability could establish minimum contacts, and found no personal jurisdiction or minimum contacts in the following circumstances: [TJhe record is devoid of any contact between Scenic Aviation and New Mexico, Scenic Aviation is a fixed-base operator selling aviation fuel in Las Vegas, Nevada. There is no evidence that Scenic Aviation advertises in New Mexico, or sells fuel to New Mexico residents. Without “contacts, ties, or relations” with New Mexico the fact that fuel sold by Scenic Aviation found its way into our state does not support a valid exercise of personal jurisdiction. 1983-NMCA-110, ¶ 19, 100 N.M. 363, 670 P.2d at 978. “[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 297, 100 S.Ct. 559. As the Tenth Circuit has further explained, because “mere foreseeability” is not sufficient to establish minimum contacts, a plaintiff “must establish ..; not only that defendants foresaw (or knew) that the effects of them conduct would be felt in the forum state, but also that defendants undertook intentional actions that were expressly aimed at that forum state.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1077. Similarly, to find general jurisdiction over a defendant, contacts must be “continuous and systematic”; therefore, “[s]imply because a defendant has a contractual relationship and business dealings with a person or entity in the forum state does not subject him to general jurisdiction there”; “correspondence with a forum resident does not support general jurisdiction;” and “sporadic or isolated visits to the forum state will not subject the defendant to general jurisdiction,” because a “[defendant’s]"
},
{
"docid": "22959196",
"title": "",
"text": "310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotation marks omitted). Given the flexible nature of our due process analysis, we should hesitate before adopting a bright-line rule that in-forum effects do not constitute jurisdictional contacts unless they also can be deemed an “injury.” That is not to say that the situs of the plaintiffs injury is irrelevant to the jurisdictional analysis. In cases where the injury occurred outside the forum, the plaintiff may find it difficult to satisfy the second prong of the Calder test, which requires a showing that the defendant’s act was “calculated” to cause the harmful effects in the forum. That inquiry is designed to determine whether the nature of the effects is such that jurisdiction reasonably can be based on them alone, and it is here that the government’s prima facie case for jurisdiction falters. The government argues that “SAB knew that its intentional conduct in Antigua would cause injury to the United States government.” That is not enough. The government must show that SAB’s actions were “expressly aimed” at the United States as a forum. Calder, 465 U.S. at 789, 104 S.Ct. 1482 (distinguishing the case of the negligent welder); Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 212 (5th Cir.1999) (“Foreseeable injury alone is not sufficient to confer specific jurisdiction, absent the direction of specific acts toward the fo rum.”); cf. Burger King, 471 U.S. at 474, 105 S.Ct. 2174 (“Although it has been argued that foreseeability of causing injury in another State should be sufficient to establish [minimum] contacts there ..., the Court has consistently held that this kind of foreseeability is not a ‘sufficient benchmark’ for exercising personal jurisdiction.” (footnote omitted) (quoting World-Wide Volkswagen, 444 U.S. at 295, 100 S.Ct. 559)). The government argues that SAB’s intentional defiance of the preliminary forfeiture order issued by the district court constitutes such express aiming. The forfeiture order identified the forfeited property as “funds which were deposited into the Swiss American Bank, Ltd., and the Swiss American National Bank in St. Johns, Antigua during the time period September 1985 through June"
},
{
"docid": "8502833",
"title": "",
"text": "v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1072 (quoting Colder v. Jones, 465 U.S. 783, 789-90, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)). These general principles of personal jurisdiction are modified in cases involving the internet. In these cases, the Tenth Circuit focuses whether the website or internet user “intentionally directed] his/ her/its activity or operation at the forum state rather than just having the activity or operation accessible there.” Shrader v. Biddinger, 633 F.3d 1235, 1240 (10th Cir.2011) (emphasis in original). Simply posting defamatory statements on a website will not, standing alone, establish personal jurisdiction over the poster in any state where the post may be read. See Shrader v. Biddinger, 633 F.3d at 1241. Instead, courts consider whether the “defendant deliberately directed its message at an audience in the forum state and intended harm to the plaintiff occurring primarily or particularly in the forum state.” Shrader v. Biddinger, 633 F.3d at 1241. In short, “the forum state itself must be the focal point of the tort.” Shrader v. Bidding-er, 633 F.3d at 1244 (emphasis in original)(quoting Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1074 n. 9) (internal quotation marks omitted). 3. Due Process and Personal Jurisdiction. The due process analysis is also two-fold: First, [the defendant] must have “minimum contacts” with the forum state, demonstrating that he “purposefully availed” himself of the protections or benefits of the state’s laws and “should reasonably anticipate being haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 ... (1985); see also Emp’rs Mut. Cas. Co., 618 F.3d at 1159-60 (reiterating the Burger King standard). Although agreements alone are likely to be insufficient to establish minimum contacts, “ ‘parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities.’ ” TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d 1282, 1287-88 (10th Cir.2007) (quoting Burger King, 471 U.S. at 473,"
},
{
"docid": "10117650",
"title": "",
"text": "at 1074 n. 9)(internal quotation marks omitted). 3. Due Process and Personal Jurisdiction. The due process analysis is also two-fold: First, [the defendant] must have “minimum contacts” with the forum state, demonstrating that he “purposefully availed” himself of the protections or benefits of the state’s laws and ‘‘should reasonably anticipate being haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. at 473-76, 105 S.Ct. 2174; see also Emp’rs Mut. Cas. Co., 618 F.3d at 1159-60 (reiterating the Burger King standard). Although agreements alone are likely to be insufficient to establish minimum contacts, “ ‘parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities.’ ” TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d 1282, 1287-88 (10th Cir.2007)(quoting Burger King, 471 U.S. at 473, 478, 105 S.Ct. 2174 ....Marcus Food Co. v. DiPanfilo, 671 F.3d at 1166). A defendant may reasonably anticipate being subject' to suit in the forum state “if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)(internal citation omitted); see also Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)(“[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State.”). TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d at 1287-88. The Supreme Court has held that the mere foreseeability of harm occurring in a particular forum will not support a finding of minimum contacts. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)(holding that, although “an automobile is mobile by its very design and ‘purpose,” thus indicating that it is foreseeable that a particular automobile may cause injury in a"
},
{
"docid": "7054388",
"title": "",
"text": "related to those contacts. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1078 n. 4. Thus, “[s]uch contacts may give rise to personal jurisdiction over a non-resident defendant either generally, for any lawsuit, or specifically, solely for lawsuits arising out of particular forum-related activities.” Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir.2011). 3. Due Process and Personal Jurisdiction. The due process analysis is also two-fold: First, [the defendant] must have “minimum contacts” with the forum state, demonstrating that he “purposefully availed” himself of the protections or benefits of the state’s laws and “should reasonably anticipate being haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 ... (1985); see also Emp’rs Mut. Cas. Co. [v. Bartile Roofs, Inc.], 618 F.3d [1153] at 1159-60 [ (10th Cir.2010) ] (reiterating the Burger King standard). Although agreements alone are likely to be insufficient to establish minimum contacts, “ ‘parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities.’ ” TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d 1282, 1287-88 (10th Cir.2007) (quoting Burger King, 471 U.S. at 473, 478, 105 S.Ct. 2174....) Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1166 (10th Cir.2011). A defendant may reasonably anticipate being subject to suit in the forum state “if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 ... (1985) (internal citation omitted); see also Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 ... (1958) (“[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State.”). TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d"
},
{
"docid": "7054390",
"title": "",
"text": "at 1287-88. Thus, to establish specific personal jurisdiction that satisfies due process, a plaintiff must present evidence of “three salient factors that together indicate ‘purposeful direction’: (a) an intentional action ... that was (b) expressly aimed at the forum state ... with (c) knowledge that the brunt of the injury would be felt in the forum state.” Shrader v. Biddinger, 633 F.3d at 1239-40 (internal quotation marks omitted). The Supreme Court of the United States has held, however, that the mere foreseeability of harm occurring in a particular forum will not support a finding of minimum contacts. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (holding that, although “an automobile is mobile by its very design and purpose,” thus indicating that it is foreseeable that a particular automobile may cause injury in a forum state, “ ‘foreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause”). “[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 297, 100 S.Ct. 559. As the United States Court of Appeals for the Tenth Circuit has further explained, because “mere foreseeability” is not sufficient to establish minimum contacts, a plaintiff “must establish ... not only that defendants foresaw (or knew) that the effects of their conduct would be felt in the forum state, but also that defendants undertook intentional actions that were expressly aimed at that forum state.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1077. Similarly, to find general jurisdiction over a defendant, contacts must be “continuous and systematic” — therefore, “[sjimply because a defendant has a contractual relationship and business dealings with a person or entity in the forum state does not subject him to general jurisdiction there;” “correspondence with a forum resident does not"
},
{
"docid": "7054389",
"title": "",
"text": "state are subject to regulation and sanctions in the other state for the consequences of their activities.’ ” TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d 1282, 1287-88 (10th Cir.2007) (quoting Burger King, 471 U.S. at 473, 478, 105 S.Ct. 2174....) Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1166 (10th Cir.2011). A defendant may reasonably anticipate being subject to suit in the forum state “if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 ... (1985) (internal citation omitted); see also Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 ... (1958) (“[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State.”). TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d at 1287-88. Thus, to establish specific personal jurisdiction that satisfies due process, a plaintiff must present evidence of “three salient factors that together indicate ‘purposeful direction’: (a) an intentional action ... that was (b) expressly aimed at the forum state ... with (c) knowledge that the brunt of the injury would be felt in the forum state.” Shrader v. Biddinger, 633 F.3d at 1239-40 (internal quotation marks omitted). The Supreme Court of the United States has held, however, that the mere foreseeability of harm occurring in a particular forum will not support a finding of minimum contacts. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (holding that, although “an automobile is mobile by its very design and purpose,” thus indicating that it is foreseeable that a particular automobile may cause injury in a forum state, “ ‘foreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause”). “[T]he foreseeability that is critical to due process analysis is not the mere likelihood"
},
{
"docid": "10117648",
"title": "",
"text": "Fine Arts, Inc., 514 F.3d at 1078 (emphasis in original). Thus, “[s]uch contacts may give rise to personal jurisdiction over a.nonresident defendant either generally, for any lawsuit, or specifically, solely for lawsuits arising out of particular forum-related activities.” Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir.2011). A court may assert specific jurisdiction “if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. at 472, 105 S.Ct. 2174 (citations omitted)(internal quotation marks omitted). In the tort context, a defendant has “purposefully directed” his activities at New Mexico or its residents when1 he or She has: (i) taken intentional action; (ii) the action was “expressly aimed” at New Mexico; and (iii) the action was taken with the knowledge that “the brunt of th[e] injury” would be felt in New Mexico. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1072 (quoting Calder v. Jones, 465 U.S. 783, 789-90, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)). Cases involving the internet amplify these general personal jurisdiction principles. In these cases, the United States Court of Appeals for the Tenth Circuit focuses whether the website or internet user “intentionally directed] his/ her/its activity or operation at the forum state rather than just having the activity or operation accessible there.” Shrader v. Biddinger, 633 F.3d 1235, 1240 (10th Cir.2011)(emphasis in original). Simply posting defamatory statements on a website will not, standing alone, establish personal jurisdiction over the poster in any state where the post may be read. See Shrader v. Biddinger, 633 F.3d at 1241. Instead, courts consider whether the “defendant deliberately directed its message at an audience in the forum, state and intended harm to the plaintiff occurring primarily or particularly in the forum state.” Shrader v. Biddinger, 633 F.3d at 1241. In short, “the forum state itself must be the focal point of the tort.” Shrader v. Biddinger, 633 F.3d at 1244 (emphasis in original)(quoting Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d"
},
{
"docid": "10117651",
"title": "",
"text": "the forum state “if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)(internal citation omitted); see also Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)(“[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State.”). TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d at 1287-88. The Supreme Court has held that the mere foreseeability of harm occurring in a particular forum will not support a finding of minimum contacts. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)(holding that, although “an automobile is mobile by its very design and ‘purpose,” thus indicating that it is foreseeable that a particular automobile may cause injury in a forum state, “ ‘foreseeability1 alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause”). In Roberts v. Piper Aircraft Corp., 1983-NMCA-110, 100 N.M. 363, 670 P.2d 974, the Court of Appeals of New Mexico similarly rejected the argument that; foreseeability could establish minimum contacts, and found no personal jurisdiction or minimum contacts in the following circumstances: [TJhe record is devoid of any contact between Scenic Aviation and New Mexico, Scenic Aviation is a fixed-base operator selling aviation fuel in Las Vegas, Nevada. There is no evidence that Scenic Aviation advertises in New Mexico, or sells fuel to New Mexico residents. Without “contacts, ties, or relations” with New Mexico the fact that fuel sold by Scenic Aviation found its way into our state does not support a valid exercise of personal jurisdiction. 1983-NMCA-110, ¶ 19, 100 N.M. 363, 670 P.2d at 978. “[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that"
},
{
"docid": "1388281",
"title": "",
"text": "plaintiff has met this burden, we will not draw ‘argumentative inferences’ in the plaintiffs favor.” Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994) (quoting Atl. Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198 (2d Cir.1992)). Moreover, “we are not bound to accept as true a legal conclusion couched as a factual allegation.” Jazini v. Nissan Motor Co., 148 F.3d 181, 185 (2d Cir.1998) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Due process mandates that a defendant’s “conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The “ ‘fair warning’ requirement is satisfied if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) and Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Put differently, personal jurisdiction is proper where the defendant took “intentional, and allegedly tortious, actions ... expressly aimed” at the forum state. Calder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984); see also In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 208 (2d Cir.2003) (citing Calder for proposition that a “court may exercise personal jurisdiction over defendant consistent with due process when defendant is a primary participant in intentional wrongdoing — albeit extraterritorially — expressly directed at forum”). Mere foreseeability of harm in the forum state is insufficient. Burger King, 471 U.S. at 474, 105 S.Ct. 2174. A The plaintiffs rely on five opinions from other circuits for the idea that the Four Princes’ alleged involvement in a terrorist attack on a citizen of the United States constitutes purposeful"
},
{
"docid": "10117649",
"title": "",
"text": "104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)). Cases involving the internet amplify these general personal jurisdiction principles. In these cases, the United States Court of Appeals for the Tenth Circuit focuses whether the website or internet user “intentionally directed] his/ her/its activity or operation at the forum state rather than just having the activity or operation accessible there.” Shrader v. Biddinger, 633 F.3d 1235, 1240 (10th Cir.2011)(emphasis in original). Simply posting defamatory statements on a website will not, standing alone, establish personal jurisdiction over the poster in any state where the post may be read. See Shrader v. Biddinger, 633 F.3d at 1241. Instead, courts consider whether the “defendant deliberately directed its message at an audience in the forum, state and intended harm to the plaintiff occurring primarily or particularly in the forum state.” Shrader v. Biddinger, 633 F.3d at 1241. In short, “the forum state itself must be the focal point of the tort.” Shrader v. Biddinger, 633 F.3d at 1244 (emphasis in original)(quoting Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1074 n. 9)(internal quotation marks omitted). 3. Due Process and Personal Jurisdiction. The due process analysis is also two-fold: First, [the defendant] must have “minimum contacts” with the forum state, demonstrating that he “purposefully availed” himself of the protections or benefits of the state’s laws and ‘‘should reasonably anticipate being haled into court there.” Burger King Corp. v. Rudzewicz, 471 U.S. at 473-76, 105 S.Ct. 2174; see also Emp’rs Mut. Cas. Co., 618 F.3d at 1159-60 (reiterating the Burger King standard). Although agreements alone are likely to be insufficient to establish minimum contacts, “ ‘parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other state for the consequences of their activities.’ ” TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d 1282, 1287-88 (10th Cir.2007)(quoting Burger King, 471 U.S. at 473, 478, 105 S.Ct. 2174 ....Marcus Food Co. v. DiPanfilo, 671 F.3d at 1166). A defendant may reasonably anticipate being subject' to suit in"
},
{
"docid": "17081419",
"title": "",
"text": "Bell Helicopter Textron, Inc. v. HeliQwest Int’l., Ltd., 385 F.3d 1291, 1296 (10th Cir.2004) (quoting Burger King, Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Although “it is foreseeable that” a product might travel to a forum state, such foreseeability is not “a sufficient benchmark for personal jurisdiction under the Due Process Clause.” World-Wide Volkswagen, 444 U.S. at 295, 100 S.Ct. 559. “[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id. at 297, 100 S.Ct. 559. In addition to the requirement that a defendant “purposefully direet[ ] his activities at residents of the forum,” the litigation must “result[ ] from alleged injuries that arise out of or relate to those activities.” Intercon, 205 F.3d at 1247 (quoting Burger King, 471 U.S. at 472, 105 S.Ct. 2174); see also Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir.1996) (defendant’s contacts “must reflect purposeful availment and the cause of action must arise out of those contacts.”); OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1092 (10th Cir.1998) (defendant’s actions must “create a substantial connection with the forum state,” and the “defendant’s presence in the forum [cannot have arisen] from the unilateral acts of someone other than the defendant.” (citations omitted) (quotations omitted)). Thus, a court must “determine whether a nexus exists between the Defendant’s] forum-related contacts and the Plaintiffs cause of action.” Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1160 (10th Cir.2010) (quotations omitted). Whether a defendant has the requisite minimum contacts with the forum state “must be decided on the particular facts of each case.” Benton, 375 F.3d at 1076 (quotations omitted). The court must examine the quantity and quality of the contacts. OMI, 149 F.3d at 1092. In World-Wide Volkswagen, owners of a new Audi purchased in New York decided to"
},
{
"docid": "8502831",
"title": "",
"text": "DiPanfilo, 671 F.3d 1159, 1166 (10th Cir.2011). New Mexico’s long-arm “statute extends the jurisdictional reach of New Mexico courts as far as constitutionally permissible.” Tercero v. Roman Catholic Diocese, 2002-NMSC-018, ¶ 6, 132 N.M. 312, 48 P.3d 50, 54 (2002). Consequently, the Court “need not conduct a statutory analysis apart from the due process analysis.” Marcus Food Co. v. DiPanfilo, 671 F.3d at 1166 (internal quotation marks omitted). 2. General and Specific Jurisdiction. Depending on the character and extent of a defendant’s contacts, a court may exercise specific or general personal jurisdiction. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (“Helicópteros ”). General jurisdiction is based on an out-of-state defendant’s “continuous and systematic” contacts with the forum state, and does not require that the claim be related to those contacts. Specific jurisdiction, on the other hand, is premised on something of a quid pro quo: in exchange for “bene- fitting” from some purposive conduct directed at the forum state, a party is deemed to consent to the exercise of jurisdiction for claims related to those contacts. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d at 1078. Thus, “[s]uch contacts may give rise to personal jurisdiction over a non-resident defendant either generally, for any lawsuit, or specifically, solely for lawsuits arising out of particular forum-related activities.” Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir.2011). A court may assert specific jurisdiction “if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citations omitted)(internal quotation marks omitted). In the tort context, a defendant has “purposefully directed” his activities at New Mexico or its residents when he or she has: (i) taken intentional action; (ii) the action was “expressly aimed” at New Mexico; and (in) the action was taken with the knowledge that “the brunt of th[e] injury” would be felt in New Mexico. Dudnikov"
},
{
"docid": "8502835",
"title": "",
"text": "478, 105 S.Ct. 2174). Marcus Food Co. v. DiPanfilo, 671 F.3d at 1166. A defendant may reasonably anticipate being subject to suit in the forum state “if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 ... (1985) (internal citation omitted); see also Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 ... (1958) (“[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State.”). TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d at 1287-88. The Su preme Court of the United States has held that the mere foreseeability of harm occurring in a particular forum will not support a finding of minimum contacts. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (holding that, although “an automobile is mobile by its very design and purpose,” thus indicating that it is foreseeable that a particular automobile may cause injury in a forum state, “ ‘foreseeability’ alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause”). In Roberts v. Piper Aircraft Corp., 1983-NMCA-110, 100 N.M. 363, 670 P.2d 974 (CtApp.1983), the Court of Appeals of New Mexico similarly rejected the argument that foreseeability could establish minimum contacts, and found no personal jurisdiction or minimum contacts in the following circumstances: [T]he record is devoid of any contact between Scenic Aviation and New Mexico. Scenic Aviation is a fixed-base operator selling aviation fuel in Las Vegas, Nevada. There is no evidence that Scenic Aviation advertises in New Mexico, or sells fuel to New Mexico residents. Without “contacts, ties, or relations” with New Mexico the fact that fuel sold by Scenic Aviation found its way into our state does not support a valid exercise of personal jurisdiction. 1983-NMCA-l 10, ¶ 19, 100"
}
] |
444910 | withdrawn formally in a section 1983 action, the court decided that the prisoner practically was acting pro se in filing his appeal and applied Houston.)', Lewis, 947 F.2d at 735-36 (Applying Houston in a pro se prisoner’s section 1983 action caused the complaint to be filed timely within the state two-year statute of limitations.); Lomax v. Armontrout, 923 F.2d 574, 575 (8th Cir.) (Using the Houston rationale, the certificate of service on a pro se habeas petitioner’s notice of appeal was used as the filing date to make the notice timely.), cert. denied, - U.S. -, 112 S.Ct. 60, 116 L.Ed.2d 36 (1991); Hostler, 912 F.2d at 1160-61 (Houston applies retroactively to pro se state prisoners’ appeals in section 1983 actions.); REDACTED ; Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (per curiam) (Houston applied in a section 1983 case to filing of a state pro se prisoner's objections to a magistrate, judge’s report and recommendation, which the district court had found to be untimely.), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Ortiz, 867 F.2d at 148-49 (Houston was used to remedy the late filing of a complaint in a section 1983 case because the initial, timely filed complaint was returned to the prg se prisoner for corrections.); Grana, 864 F.2d at 315-16 (Applying | [
{
"docid": "23201089",
"title": "",
"text": "notice of appeal was timely filed under Houston v. Lack, — U.S. —, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Lack holds that a notice of appeal by a pro se prisoner will be deemed timely filed when delivered to the prison mail system, rather than when actually filed with the court. Lack, 108 S.Ct. at 2385. On remand the magistrate, after an evidentiary hearing, found that Burrell, who was incarcerated, delivered his notice of appeal to the prison mail officials on September 9, 1989, thirty-one days after the district court judgment filing date of August 9, 1988. Thus, the magistrate concluded that Burrell’s notice of appeal was untimely. The district court adopted the magistrate’s report and forwarded the findings of fact and conclusions to this Court. Discussion The magistrate and district court apparently overlooked the fact that while the district court’s judgment was filed on August 9, 1988, it was not entered on the docket until August 10, 1988. The period for appeal begins to run from the date of entry of the judgment on the docket sheet, which in the instant case was August 10, 1988. See, e.g., United States v. Doyle, 854 F.2d 771, 772 (5th Cir.1988); Harcon Barge Co. v. D & G Boat Rentals, Inc., 746 F.2d 278, 282 (5th Cir.1984), reh’g en banc ordered as to Part III, reh’g otherwise denied, 760 F.2d 86 (5th Cir.1985), opinion en banc, 784 F.2d 665 (5th Cir.), cert. denied, 479 U.S. 930,107 S.Ct. 398, 93 L.Ed.2d 351 (1986). Burrell delivered his notice of appeal to the prison authorities on September 9, 1988, thirty days after the judgment was docketed. Therefore, in accordance with Lack, Burrell’s appeal is timely. Lack, 108 S.Ct. at 2385. The district court, sua sponte, applied the Texas two-year personal injury statute of limitations to bar Burrell’s section 1983 claims. See Tex.Civ.Prac. & Rem.Code Ann. § 16.003(a) (Vernon 1986). While this Court generally will not consider an affirmative defense not raised below, we are not prevented from considering the defense where it is raised sua sponte by the district court. See, e.g., Baylor Univ."
}
] | [
{
"docid": "5587928",
"title": "",
"text": "the rationale of Houston v. Lack should apply to a pro se notice of appeal in a section 1983 action submitted by an inmate to prison authorities for filing within the time fixed by Fed.R.App.P. 4(a). Other circuits that have considered this question have extended the Houston rule to section 1983 suits by pro se prisoners. In Hostler v. Groves, 912 F.2d 1158, 1160 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1074, 112 L.Ed.2d 1180 (1991), the court observed that “[t]he opinion in Houston gives no indication that its holding should be limited to habeas cases.” The court noted that Houston's underlying policy — that of not penalizing pro se prisoners for delays over which they have no control once they have timely delivered notices of appeal to prison authorities — applies with equal force to section 1983 actions. 912 F.2d at 1161. Moreover, the court recognized that “[i]n fact, prison authorities would have greater incentive to delay the processing of section 1983 suits, since such suits often target prison officials.” Id. See also Vaughan v. Ricketts, 950 F.2d 1464, 1467-68 (9th Cir.1991). In Lewis v. Richmond City Police Dept., 947 F.2d 733, 735-36 (4th Cir.1991) (per curiam), the court set forth the considerations that prompted it to extend Houston’s holding to pro se complaints filed in civil actions: The concerns which prompted the Supreme Court’s ruling in Houston are equally present in the case at hand. The litigants are similarly situated. Both are incarcerated pro se litigants who are unable to monitor the process of the mails as are other litigants. They are unaware of delays and unable to rectify any problems even if they were apprised of them. They cannot deliver a copy of their document to the clerk by hand, and do not have access to express mail services. They must rely on correctional authorities, who may be motivated to delay the filing. If the pleading is delayed, they have no way to determine the cause and possibly obtain evidence to support a finding of excusable neglect. Because they are acting pro se, they do"
},
{
"docid": "23400705",
"title": "",
"text": "of prison authorities, as “[t]he prison will be the only party with access to at least some of the evidence needed to resolve such questions ... and evidence on any of these issues will be hard to come by for the prisoner confined to his cell, who can usually only guess whether the prison authorities, the Postal Service, or the court clerk is to blame for any delay.” Id. at 276, 108 S.Ct. at 2386. Pro se prisoners experience similar difficulties in filing appeals from non-habeas civil suits. In fact, prison authorities would have greater incentive to delay the processing of section 1983 suits, since such suits often target prison officials. The only circuit that has faced this question has assumed, without analysis, that Houston applies to non-habeas civil suits. See Smith v. White, 857 F.2d 1042, 1043 (5th Cir.1988); cf. Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (citing Houston, court deemed objections to magistrate’s report in section 1983 case timely since timely mailed from prison), cert. denied, — U.S. -, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990). Given the broad language of Houston and its important policy concerns, we conclude that Houston applies to notices of appeal filed in non-habeas civil cases by incarcerated prisoners acting pro se. b. Retroactivity This circuit has not directly addressed whether Houston should be applied retroactively. In Miller v. Sumner, 872 F.2d at 287, where the untimely filing occurred prior to the decision in Houston, the panel apparently assumed that Houston would apply retroactively. Specifically, the panel stated that if the district court determined the appellant had timely delivered his notice of appeal, the district court should issue a statement of probable cause: “Only then will we have jurisdiction over this appeal.” 872 F.2d at 289. We now confirm that Houston will be applied retroactively. “[A] fundamental principle of our jurisprudence is that a court will apply the law as it exists when rendering its decision.” DeGurules v. INS, 833 F.2d 861, 863 (9th Cir.1987); Bradley v. School Board of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d"
},
{
"docid": "5587927",
"title": "",
"text": "a pro se notice of appeal deposited by an inmate with , prison authorities for mailing within the thirty-day period fixed by Fed.R.App.P. 4(a) for the filing of a notice of appeal. The Court held that “the Court of Appeals had jurisdiction over petitioner’s appeal because the notice of appeal was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk.” 487 U.S. at 276, 108 S.Ct. at 2385. The Court reasoned that Houston lost control over and contact with his notice of appeal when he delivered it to the prison authorities and not when the clerk received it. Id. at 275, 108 S.Ct. at 2384. The Court observed that Fed. R.App.P. 4(a) contemplates a civil litigant who chooses to mail a notice of appeal and who should thus assume the risk of untimely delivery and filing. Id. By contrast, a pro se prisoner has no choice but to submit his notice to prison authorities for forwarding to the court clerk. Id. The question before us is whether the rationale of Houston v. Lack should apply to a pro se notice of appeal in a section 1983 action submitted by an inmate to prison authorities for filing within the time fixed by Fed.R.App.P. 4(a). Other circuits that have considered this question have extended the Houston rule to section 1983 suits by pro se prisoners. In Hostler v. Groves, 912 F.2d 1158, 1160 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1074, 112 L.Ed.2d 1180 (1991), the court observed that “[t]he opinion in Houston gives no indication that its holding should be limited to habeas cases.” The court noted that Houston's underlying policy — that of not penalizing pro se prisoners for delays over which they have no control once they have timely delivered notices of appeal to prison authorities — applies with equal force to section 1983 actions. 912 F.2d at 1161. Moreover, the court recognized that “[i]n fact, prison authorities would have greater incentive to delay the processing of section 1983 suits, since such suits often target prison officials.” Id. See"
},
{
"docid": "23696867",
"title": "",
"text": "have timely delivered notices of appeal to prison authorities — applies with equal force to section 1983 actions.” Hamm v. Moore, 984 F.2d at 892, citing Hostler v. Groves, 912 F.2d 1158, 1161 (9th Cir.1990) (§ 1983 actions), cert. denied, 498 U.S. 1120, 111 S.Ct. 1074, 112 L.Ed.2d 1180 (1991). \"In fact, prison authorities would have greater incentive to delay the processing of section 1983 suits, since such suits often target prison officials.” Hostler v. Groves, 912 F.2d at 1161. Other circuits have extended the rule in Houston v. Lack to other pro se prisoner filings. See United States v. Moore, 24 F.3d 624 (4th Cir.1994) (notice of appeal in criminal matter); Dory v. Ryan, 999 F.2d 679 (2d Cir.1993) (§ 1983 complaint), modified on other grounds, 25 F.3d 81 (2d Cir. 1994); Thompson v. Rasherry, 993 F.2d 513, 515 (5th Cir.1993) (per curiam) (objections to magistrate judge’s report and recommendation); Garvey v. Vaughn, 993 F.2d 776 (11th Cir.1993) (§ 1983 complaints and claims under Federal Tort Claim Act); Faile v. Upjohn Co., 988 F.2d 985, 988-89 (9th Cir.1993) (all filings); Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir.1992) (Rule 59(e) motion); Lewis v. Richmond City Police Dep't, 947 F.2d 733, 735-36 (4th Cir.1991) (per curiam) (civil complaints); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (objections to magistrate judge's report and recommendation), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988) (Rule 59(e) motion); Moskovits v. DEA, 774 F.Supp. 649, 653 (D.D.C.1991) (forfeiture response)."
},
{
"docid": "23400704",
"title": "",
"text": "a pro se prisoner’s notice of appeal from denial of a petition for habeas corpus was deemed filed at the moment the prisoner delivered the notice to prison authorities for forwarding to the district court. See Miller v. Sumner, 872 F.2d 287, 288 (9th Cir.1989), dismissed after remand, 910 F.2d 638, 639 (9th Cir.1990) (“For the exception to filing requirements for pro se prisoner appeals to apply, the notice must be posted through the prison log system.”) a. Application to Non-habeas Cases The opinion in Houston gives no indication that its holding should be limited to habeas cases. The Court noted that a pro se prisoner cannot personally monitor the processing of a notice of appeal and “has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay.” 487 U.S. at 271, 108 S.Ct. at 2382. The Court also noted that a prisoner has no means of proving that a delay may have been the fault of prison authorities, as “[t]he prison will be the only party with access to at least some of the evidence needed to resolve such questions ... and evidence on any of these issues will be hard to come by for the prisoner confined to his cell, who can usually only guess whether the prison authorities, the Postal Service, or the court clerk is to blame for any delay.” Id. at 276, 108 S.Ct. at 2386. Pro se prisoners experience similar difficulties in filing appeals from non-habeas civil suits. In fact, prison authorities would have greater incentive to delay the processing of section 1983 suits, since such suits often target prison officials. The only circuit that has faced this question has assumed, without analysis, that Houston applies to non-habeas civil suits. See Smith v. White, 857 F.2d 1042, 1043 (5th Cir.1988); cf. Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (citing Houston, court deemed objections to magistrate’s report in section 1983 case timely since timely mailed from prison), cert. denied, — U.S. -, 110 S.Ct."
},
{
"docid": "6413499",
"title": "",
"text": "the pro se prisoner’s lack of control over delays between prison authorities’ receipt of the notice and its formal “filing” by the district court. Recognizing that these policy concerns apply to other procedural deadlines, courts in other circuits have held that delivery to prison authorities constitutes “filing” under rules in addition to Fed.R.App.P. 4(a)(1) governing notices of appeal. See Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir.1992) (Houston' “applies to other filings, including a Rule 59(e) motion”); Lewis v. Richmond City Police Dept., 947 F.2d 733 (4th Cir.1991) (filing of complaint for purposes of statute of limitations); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (filing of plaintiff’s objections to magistrate’s report and recommendation), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988) (Rule 59(e) motion for reconsideration); Moskovits v. Drug Enforcement Agency, 774 F.Supp. 649, 653 (D.D.C.1991) (response to agency regarding claim to currency under forfeiture). In this circuit, we have not yet held that Houston applies to procedural deadlines other than for civil notices of appeal. Nonetheless, our decisions have evinced a pragmatic approach in applying the deci sion’s rule in circumstances other than those presented in Houston itself — a pro se prisoner appealing the denial of a writ of habeas corpus. In our subsequent cases, our main concern has been whether the circumstances involve the same lack of control over timeliness described in Houston. For example, focusing on “the broad language of Houston and its important policy concerns,” and noting that “[p]ro se prisoners experience similar difficulties in filing appeals from non-habeas civil suits,” we have held that the rule in Houston cannot be confined to habeas petitioners. See Hostler v. Groves, 912 F.2d 1158, 1160-61 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1074, 112 L.Ed.2d 1180 (1991). We have also concluded that a prisoner whose counsel has not been technically discharged may nonetheless invoke the rule in Houston if he can show that his counsel has abandoned him; the decision rested on our conclusion that the inmate abandoned by"
},
{
"docid": "23034018",
"title": "",
"text": "he timely placed his notice of appeal in the prison mailbox.); Smith, 853 F.2d at 161-62 (Houston is applicable to a motion to alter or amend a judgment pursuant to Federal Rule of Civil Procedure 59(e) for a pro se state prisoner in a section 1983 action.). . Federal Rule of Appellate Procedure 3(a) states that \"An appeal ... shall be taken by filing a notice of appeal with the clerk of the district court,\" and Federal Rule of Appellate Procedure 4(a)(1) says that a notice of appeal \"shall be filed with the clerk of the district court.” Federal Rule of Civil Procedure 5(e) states that \"[t]he filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court.” . Houston is restricted to federal court filings; a notice of appeal given to prison authorities for delivery to a person or entity other than a federal court is not included in \"Houston's mailbox rule.” Wilder v. Chairman of Cent. Classification Bd., 926 F.2d 367, 370-71 (4th Cir.) (Pro se inmate addressed and sent his notice of appeal in a section 1983 case to a friend for subsequent forwarding to the district court.), cert. denied, - U.S. -, 112 S.Ct. 109, 116 L.Ed.2d 78 (1991). .While the Fourth Circuit recognized that state statutes of limitation provide the period within which a section 1983, personal injury action can be filed, it concluded that state tolling provisions are not applicable. Lewis, 947 F.2d at 735 (citing Wilson, 471 U.S. at 280, 105 S.Ct. at 1949). The court based this differentiation on the historical distinction between diversity and federal question cases, such as a section 1983 case. Id. (citing West v. Conrail, 481 U.S. 35, 39, 107 S.Ct. 1538, 1541-42, 95 L.Ed.2d 32 (1987)). . In Johnson’s case, the government also argues that, even if Houston is applicable, his federal tort claim cannot be incorporated because the motion did not name the United States as a defendant and was against defendant-appellee Southerland solely. Consequently, the government appears to argue lack of notice, since"
},
{
"docid": "23034004",
"title": "",
"text": "an equitable resolution to the pro se prisoner’s filing dilemma, the Court was mindful that “the Rules are not, and were not intended to be, a rigid code to have an inflexible meaning irrespective of the circumstances.” Fallen, 378 U.S. at 142, 84 S.Ct. at 1691. Moreover, Houston does not indicate that it should be limited to habeas corpus appeals. Lewis v. Richmond City Police Dep’t, 947 F.2d 733, 736 (4th Cir.1991) (per curiam); Hostler v. Groves, 912 F.2d 1158, 1160 (9th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1074, 112 L.Ed.2d 1180 (1991). Using its fairness rationale, other circuits have applied the Houston pro se prisoner filing rule extensively to state and federal inmates and have not limited Houston to its facts. In Lewis, the Fourth Circuit extended Houston to include Federal Rules of Civil Procedure 3 and 5(e) for a pro se state prisoner who filed a 42 U.S.C. § 1983 action. Strikingly similar to Garvey’s case, the Lewis plaintiff-appellant had placed his complaint alleging excessive force at his arrest in the box designated for prisoner mail at his correctional facility in Virginia. Because his complaint was received by the district court outside the two-year, Virginia statute of limitations for personal injury actions, the court dismissed his complaint as untimely. On appeal, the Fourth Circuit applied and extended Houston based on its conclusion that Houston established a fundamental “rule of equal treatment ... to ensure that imprisoned litigants are not disadvantaged by delays which other litigants might readily overcome.” Lewis, 947 F.2d at 735. The court found the same concerns that prompted Houston were present in Lewis in that the pro se prisoner was unable to monitor the mails or to rectify any delays in the mail, even if he had been aware of them. Additionally, such .pro se prisoners must rely on prison authorities, who may-be motivated to delay the filing and who control and log prisoners’ outgoing mail. See Hostler, 912 F.2d at 1161 (“[Pjrison authorities would have greater incentive to delay the processing of section 1983 suits, since such suits often target prison officials.”)."
},
{
"docid": "23034014",
"title": "",
"text": "findings. Stokes v. Singletary, 952 F.2d 1567, 1576 (11th Cir.1992); LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir.), cert. denied, 488 U.S. 958, 109 S.Ct. 397, 102 L.Ed.2d 386 (1988); 28 U.S.C. § 636(b)(1)(B). . Johnson has raised additional issues on appeal that he did not present to the district court. Because these supplemental issues are not purely questions of law, the consideration of which would result in the miscarriage of justice, we decline to address them. N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1563 (11th Cir.1990). . Other circuits have concluded that Houston does not assist a pro se prisoner who delivers his court document for mailing to prison authorities after the statutory deadline has expired. See Stajic v. I.N.S., 961 F.2d 403, 405 (2d Cir.1992) (per curiam) (declining to extend Houston to allow a pro se prisoner to file a petition after the statutory deadline in a deportation proceeding); Smith v. Evans, 853 F.2d 155, 162 (3d Cir.1988) (finding Houston unavailable to make a pro se federal prisoner’s motion under Federal Rule of Civil Procedure 59(e) timely, when ”[i]t is clear that when [the pro se prisoner] put his motion in the envelope (even before he gave it to prison authorities to mail) his motion was untimely.\"); see also United States v. Locke, 471 U.S. 84, 101, 105 S.Ct. 1785, 1796, 85 L.Ed.2d 64 (1985) (\"Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced.”). . In a pro se prisoner's section 1983 action, the Second Circuit found that the prison mail log showing when the inmate received correspondence from the district court was suggestive of prison officials' confiscating some of the prisoner’s legal papers and indicated when his complaint was received for mailing to district court. Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir.1989). . See, e.g., Vaughan v: Ricketts, 950 F.2d 1464, 1466-68 (9th Cir.1991) (While prisoner’s counsel had not withdrawn formally in"
},
{
"docid": "23034015",
"title": "",
"text": "Civil Procedure 59(e) timely, when ”[i]t is clear that when [the pro se prisoner] put his motion in the envelope (even before he gave it to prison authorities to mail) his motion was untimely.\"); see also United States v. Locke, 471 U.S. 84, 101, 105 S.Ct. 1785, 1796, 85 L.Ed.2d 64 (1985) (\"Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced.”). . In a pro se prisoner's section 1983 action, the Second Circuit found that the prison mail log showing when the inmate received correspondence from the district court was suggestive of prison officials' confiscating some of the prisoner’s legal papers and indicated when his complaint was received for mailing to district court. Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir.1989). . See, e.g., Vaughan v: Ricketts, 950 F.2d 1464, 1466-68 (9th Cir.1991) (While prisoner’s counsel had not withdrawn formally in a section 1983 action, the court decided that the prisoner practically was acting pro se in filing his appeal and applied Houston.)', Lewis, 947 F.2d at 735-36 (Applying Houston in a pro se prisoner’s section 1983 action caused the complaint to be filed timely within the state two-year statute of limitations.); Lomax v. Armontrout, 923 F.2d 574, 575 (8th Cir.) (Using the Houston rationale, the certificate of service on a pro se habeas petitioner’s notice of appeal was used as the filing date to make the notice timely.), cert. denied, - U.S. -, 112 S.Ct. 60, 116 L.Ed.2d 36 (1991); Hostler, 912 F.2d at 1160-61 (Houston applies retroactively to pro se state prisoners’ appeals in section 1983 actions.); Burrell v. Newsome, 883 F.2d 416, 417 (5th Cir.1989) (Under Houston, a pro se state prisoner’s appeal in a section 1983 case was filed timely within the state two-year statute of limitations.); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (per curiam) (Houston applied in a section 1983 case to filing of a state pro se"
},
{
"docid": "23034005",
"title": "",
"text": "box designated for prisoner mail at his correctional facility in Virginia. Because his complaint was received by the district court outside the two-year, Virginia statute of limitations for personal injury actions, the court dismissed his complaint as untimely. On appeal, the Fourth Circuit applied and extended Houston based on its conclusion that Houston established a fundamental “rule of equal treatment ... to ensure that imprisoned litigants are not disadvantaged by delays which other litigants might readily overcome.” Lewis, 947 F.2d at 735. The court found the same concerns that prompted Houston were present in Lewis in that the pro se prisoner was unable to monitor the mails or to rectify any delays in the mail, even if he had been aware of them. Additionally, such .pro se prisoners must rely on prison authorities, who may-be motivated to delay the filing and who control and log prisoners’ outgoing mail. See Hostler, 912 F.2d at 1161 (“[Pjrison authorities would have greater incentive to delay the processing of section 1983 suits, since such suits often target prison officials.”). The Fourth Circuit compared the wording of Federal Rules of Appellate Procedure 3(a) and 4(a)(1), implicated in Houston, with that of Federal Rule of Civil Procedure 5(e), and found them to be so similar that an identical interpretation was warranted. As applied to pro se prisoners, the Supreme Court construed “filing” in the Appellate Rules to mean “directed to” the clerk of the district court, which occurred upon delivery to prison officials. Lewis, 947 F.2d at 736. Accordingly, the Fourth Circuit determined that the subject complaint was filed timely because it was delivered to prison officials within the two-year statute of limitations period. We approve and- adopt the Fourth Circuit’s reasoning in Lewis, which is directly analogous to Garvey’s case. Regarding Johnson’s case, we find that the same considerations of equal access to the courts involved in a state pro se prisoner’s filing a section 1983 action apply to a federal pro se prisoner’s filing a claim under the Federal Tort Claims Act. See Hostler, 912 F.2d at 1161 (The “broad language of Houston and"
},
{
"docid": "23034016",
"title": "",
"text": "a section 1983 action, the court decided that the prisoner practically was acting pro se in filing his appeal and applied Houston.)', Lewis, 947 F.2d at 735-36 (Applying Houston in a pro se prisoner’s section 1983 action caused the complaint to be filed timely within the state two-year statute of limitations.); Lomax v. Armontrout, 923 F.2d 574, 575 (8th Cir.) (Using the Houston rationale, the certificate of service on a pro se habeas petitioner’s notice of appeal was used as the filing date to make the notice timely.), cert. denied, - U.S. -, 112 S.Ct. 60, 116 L.Ed.2d 36 (1991); Hostler, 912 F.2d at 1160-61 (Houston applies retroactively to pro se state prisoners’ appeals in section 1983 actions.); Burrell v. Newsome, 883 F.2d 416, 417 (5th Cir.1989) (Under Houston, a pro se state prisoner’s appeal in a section 1983 case was filed timely within the state two-year statute of limitations.); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (per curiam) (Houston applied in a section 1983 case to filing of a state pro se prisoner's objections to a magistrate, judge’s report and recommendation, which the district court had found to be untimely.), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Ortiz, 867 F.2d at 148-49 (Houston was used to remedy the late filing of a complaint in a section 1983 case because the initial, timely filed complaint was returned to the prg se prisoner for corrections.); Grana, 864 F.2d at 315-16 (Applying Houston, any delay by prison officials in transmitting a notice of a judgment or final order to a federal pro se prisoner should be excluded from the computation time for taking an appeal.); Smith v. White, 857 F.2d 1042, 1043 (5th Cir.1988) (per curiam) (Even without a certificate of service, the signature of a pro se state prisoner on a timely notice of appeal complies with Houston), Thompson v. Montgomery, 853 F.2d 287, 288 (5th Cir.1988) (per curiam) (Based on Houston, a civil rights action was remanded to district court for determination of whether any documentation supported the pro se prisoner’s assertion that"
},
{
"docid": "21066471",
"title": "",
"text": "Appellate Procedure 4(c). Grady, 269 F.3d at 916. As written, the Rule applies only to notices of appeal. Id. Nevertheless, we have extended the benefits of the prison mailbox rule to pro se state prisoners who file 28 U.S.C. § 2254 habeas petitions and to pro se federal prisoners who seek similar relief under § 2255. Grady, 269 F.3d at 916. In doing so, we concluded the Supreme Court’s reasoning in Houston applies with “virtually equal force” in the habeas context. Nichols v. Bowersox, 172 F.3d 1068, 1075 (8th Cir.1999) (en banc); see Moore v. United States, 173 F.3d 1131, 1135 (8th Cir.1999). Although we have not yet extended the prison mailbox rule to § 1983 complaints filed by pro se prisoners, it appears that all other courts to consider the issue have held Houston applies. Casanova v. Dubois, 304 F.3d 75, 79 (1st Cir.2002) (extending Houston to § 1983 complaints); Richard v. Ray, 290 F.3d 810, 813 (6th Cir.2002) (per curiam) (all civil complaints); Cooper v. Brookshire, 70 F.3d 377, 380 (5th Cir.1995) (all civil complaints); Garvey v. Vaughn, 993 F.2d 776, 783 (11th Cir.1993) (§ 1983 & FTCA complaints); Dory v. Ryan, 999 F.2d 679, 682 (2d Cir.1993) (§ 1983 complaints); Lewis v. Richmond City Police Dep’t, 947 F.2d 733, 736 (4th Cir.1991) (per curiam) (§ 1983 or all civil complaints); see also Edwards v. United States, 266 F.3d 756, 758 (7th Cir.2001) (per curiam) (extending rule to all pro se filings absent exceptional circumstances). These courts have concluded the rationale for extending the prison mailbox rule to habeas actions applies equally to prisoner civil complaints. The defendants cite no contrary law, but point out that in contrast to the thirty-day period in which a prisoner must file a notice of appeal (and the one-year period in which a prisoner must file a habeas action), Sulik had five years to file his § 1983 action against most of the defendants. This is not a valid distinction. Cooper, 70 F.3d at 380-81; Lewis, 947 F.2d at 736. The foundation of Houston is the inherent disadvantage suffered by pro se"
},
{
"docid": "22918305",
"title": "",
"text": "(1988), does not apply to § 1983 suits. It therefore denied his motion to reconsider even on the assumption that his complaint had been placed in the mailbox for legal mail no later than November 30, 2004. Douglas has timely appealed the dismissal of his complaint. II. Standard of Review “We review de novo a district court’s decision to dismiss for failure to state a claim pursuant to Rule 12(b)(6). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001, 1003 (9th Cir.2008) (citation omitted). III. Discussion A. The Mailbox Rule The central issue in this appeal is whether the Houston mailbox rule applies to § 1983 suits brought by pro se prisoners and, if so, whether Douglas’s complaint was timely filed under that rule. In Houston, a pro se prisoner sought to appeal the district court’s dismissal of his § 2254 habeas corpus petition. The Supreme Court held that he filed his notice of appeal “at the time [he] delivered it to the prison authorities for forwarding to the court clerk.” 487 U.S. at 276, 108 S.Ct. 2379. We have applied the Houston mailbox rule to a number of different legal filings by pro se prisoners. See James v. Madison St. Jail, 122 F.3d 27, 28 (9th Cir.1997) (per curiam) (trust-account statements required to be filed by 28 U.S.C. § 1915(a)(2)); Caldwell v. Amend, 30 F.3d 1199, 1201 (9th Cir.1994) (Rule 50(b) motion); Faile v. Upjohn Co., 988 F.2d 985, 989 (9th Cir. 1993) (discovery responses); Hostler v. Groves, 912 F.2d 1158, 1161 (9th Cir.1990) (notice of appeal in non-habeas civil cases). However, we have not yet addressed the question whether the Houston mailbox rule applies to a § 1983 suit filed by a pro se prisoner. Defendants argue, first, that the Hoioston mailbox rule does not apply to § 1983 suits. They argue, second, that if the mailbox rule does apply, Douglas failed to comply with it. We respond to these arguments in turn. 1. Applicability of the Mailbox Rule"
},
{
"docid": "23696866",
"title": "",
"text": "we affirm the judgment of the district court. . The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota, adopting the report and recommendation of the Honorable Jonathan G. Lebedoff, United States Magistrate Judge for the District of Minnesota. . This circuit has as yet extended the rule in Houston v. Lack only to a prisoner's pro se notice of appeal in a 42 U.S.C. § 1983 action. Hamm v. Moore, 984 F.2d 890, 892 (8th Cir.1992) (noting opinion in Houston v. Lack does not indicate that its holding should be limited to habeas cases); cf. Allen v. Dowd, 964 F.2d 745 (8th Cir.) (suggesting Houston v. Lack is limited to notices of appeal), cert. denied, — U.S. -, 113 S.Ct. 335, 121 L.Ed.2d 253 (1992). A good argument can be made for extending the rule in Houston v. Lack to filings other than notices of appeal. \"Houston [v. Lack Js underlying policy — that of not penalizing pro se prisoners for delays over which they have no control once they have timely delivered notices of appeal to prison authorities — applies with equal force to section 1983 actions.” Hamm v. Moore, 984 F.2d at 892, citing Hostler v. Groves, 912 F.2d 1158, 1161 (9th Cir.1990) (§ 1983 actions), cert. denied, 498 U.S. 1120, 111 S.Ct. 1074, 112 L.Ed.2d 1180 (1991). \"In fact, prison authorities would have greater incentive to delay the processing of section 1983 suits, since such suits often target prison officials.” Hostler v. Groves, 912 F.2d at 1161. Other circuits have extended the rule in Houston v. Lack to other pro se prisoner filings. See United States v. Moore, 24 F.3d 624 (4th Cir.1994) (notice of appeal in criminal matter); Dory v. Ryan, 999 F.2d 679 (2d Cir.1993) (§ 1983 complaint), modified on other grounds, 25 F.3d 81 (2d Cir. 1994); Thompson v. Rasherry, 993 F.2d 513, 515 (5th Cir.1993) (per curiam) (objections to magistrate judge’s report and recommendation); Garvey v. Vaughn, 993 F.2d 776 (11th Cir.1993) (§ 1983 complaints and claims under Federal Tort Claim Act); Faile v. Upjohn Co., 988 F.2d"
},
{
"docid": "23034017",
"title": "",
"text": "prisoner's objections to a magistrate, judge’s report and recommendation, which the district court had found to be untimely.), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Ortiz, 867 F.2d at 148-49 (Houston was used to remedy the late filing of a complaint in a section 1983 case because the initial, timely filed complaint was returned to the prg se prisoner for corrections.); Grana, 864 F.2d at 315-16 (Applying Houston, any delay by prison officials in transmitting a notice of a judgment or final order to a federal pro se prisoner should be excluded from the computation time for taking an appeal.); Smith v. White, 857 F.2d 1042, 1043 (5th Cir.1988) (per curiam) (Even without a certificate of service, the signature of a pro se state prisoner on a timely notice of appeal complies with Houston), Thompson v. Montgomery, 853 F.2d 287, 288 (5th Cir.1988) (per curiam) (Based on Houston, a civil rights action was remanded to district court for determination of whether any documentation supported the pro se prisoner’s assertion that he timely placed his notice of appeal in the prison mailbox.); Smith, 853 F.2d at 161-62 (Houston is applicable to a motion to alter or amend a judgment pursuant to Federal Rule of Civil Procedure 59(e) for a pro se state prisoner in a section 1983 action.). . Federal Rule of Appellate Procedure 3(a) states that \"An appeal ... shall be taken by filing a notice of appeal with the clerk of the district court,\" and Federal Rule of Appellate Procedure 4(a)(1) says that a notice of appeal \"shall be filed with the clerk of the district court.” Federal Rule of Civil Procedure 5(e) states that \"[t]he filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court.” . Houston is restricted to federal court filings; a notice of appeal given to prison authorities for delivery to a person or entity other than a federal court is not included in \"Houston's mailbox rule.” Wilder v. Chairman of Cent. Classification Bd., 926 F.2d 367,"
},
{
"docid": "6413498",
"title": "",
"text": "to prison authorities for forwarding to the district court. In so holding, the Court barred application of the general rule that, in determining the timeliness of appeal under Fed.R.App.P. 4(a)(1), “filing” occurs only upon receipt by the district court. The Court noted that, for the ordinary civil litigant, receipt rather than formal “filing” determines timeliness because the litigant lacks control over the notice once it is in the district court’s possession. Houston, 487 U.S. at 273, 108 S.Ct. at 2383. The pro se prisoner, with neither the freedom to deliver the notice himself, nor counsel to deliver it for him, surrenders control even earlier in the process than the ordinary litigant. Id. at 271, 273-74, 108 S.Ct. at 2382, 2383-84. Absent the rule in Houston, the pro se prisoner’s right to appeal would depend entirely upon the diligence both of the prison authorities in promptly mailing the notice and of the postal service in timely delivering it. See Id. at 275-76, 108 S.Ct. at 2384-85. Thus, the rule in Houston relies on policy concerns surrounding the pro se prisoner’s lack of control over delays between prison authorities’ receipt of the notice and its formal “filing” by the district court. Recognizing that these policy concerns apply to other procedural deadlines, courts in other circuits have held that delivery to prison authorities constitutes “filing” under rules in addition to Fed.R.App.P. 4(a)(1) governing notices of appeal. See Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir.1992) (Houston' “applies to other filings, including a Rule 59(e) motion”); Lewis v. Richmond City Police Dept., 947 F.2d 733 (4th Cir.1991) (filing of complaint for purposes of statute of limitations); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (filing of plaintiff’s objections to magistrate’s report and recommendation), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.1988) (Rule 59(e) motion for reconsideration); Moskovits v. Drug Enforcement Agency, 774 F.Supp. 649, 653 (D.D.C.1991) (response to agency regarding claim to currency under forfeiture). In this circuit, we have not yet held that Houston applies to procedural deadlines"
},
{
"docid": "23034006",
"title": "",
"text": "The Fourth Circuit compared the wording of Federal Rules of Appellate Procedure 3(a) and 4(a)(1), implicated in Houston, with that of Federal Rule of Civil Procedure 5(e), and found them to be so similar that an identical interpretation was warranted. As applied to pro se prisoners, the Supreme Court construed “filing” in the Appellate Rules to mean “directed to” the clerk of the district court, which occurred upon delivery to prison officials. Lewis, 947 F.2d at 736. Accordingly, the Fourth Circuit determined that the subject complaint was filed timely because it was delivered to prison officials within the two-year statute of limitations period. We approve and- adopt the Fourth Circuit’s reasoning in Lewis, which is directly analogous to Garvey’s case. Regarding Johnson’s case, we find that the same considerations of equal access to the courts involved in a state pro se prisoner’s filing a section 1983 action apply to a federal pro se prisoner’s filing a claim under the Federal Tort Claims Act. See Hostler, 912 F.2d at 1161 (The “broad language of Houston and its important policy concerns” indicate that it should be applied in contexts other than habeas cases when prisoners act pro se.). Further, the Court has emphasized' “that the requirements of the rules of procedure should be liberally construed and that ‘mere technicalities’ should not stand in the way of consideration of a case on its merits.” Torres v. Oakland Scavenger Co., 487 U.S. 312, 316, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988). In keeping with the Court’s clear direction in Houston to provide pro se prisoners equal access to the courts with other litigants, we do not view the distinction between a federal pro se prisoner filing a federal tort claim to be “meaningfully distinguishable” from a state pro se prisoner filing a section 1983 action. Grana, 864 F.2d at 315. “Once a pro se litigant has done everything possible to bring his action, he should not be penalized by strict rules which might otherwise apply if he were represented by counsel.” Oritz v. Cornetta, 867 F.2d 146, 148 (2d Cir.1989). Therefore, we now"
},
{
"docid": "23034007",
"title": "",
"text": "its important policy concerns” indicate that it should be applied in contexts other than habeas cases when prisoners act pro se.). Further, the Court has emphasized' “that the requirements of the rules of procedure should be liberally construed and that ‘mere technicalities’ should not stand in the way of consideration of a case on its merits.” Torres v. Oakland Scavenger Co., 487 U.S. 312, 316, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988). In keeping with the Court’s clear direction in Houston to provide pro se prisoners equal access to the courts with other litigants, we do not view the distinction between a federal pro se prisoner filing a federal tort claim to be “meaningfully distinguishable” from a state pro se prisoner filing a section 1983 action. Grana, 864 F.2d at 315. “Once a pro se litigant has done everything possible to bring his action, he should not be penalized by strict rules which might otherwise apply if he were represented by counsel.” Oritz v. Cornetta, 867 F.2d 146, 148 (2d Cir.1989). Therefore, we now hold that this circuit extends Houston to pro se prisoners filing complaints in section 1983 cases and claims under the Federal Tort Claims Act. In these cases, the date of filing shall be that of delivery to prison officials of a complaint or other papers destined for district court for the purpose of ascertaining timeliness. “The teaching of Houston is that prison delay beyond the litigant’s control cannot fairly be used in computing time for appeal.” Grana, 864 F.2d at 316. Because the respective actions of Garvey and Johnson would have been filed timely within the operative statutes of limitation had the dates of delivery to prison authorities been used, these cases must be reinstated for adjudication on the merits in district court. III. CONCLUSION The respective district courts in the Garvey and Johnson cases dismissed the pro se prisoners’ actions because they were not filed timely. Under our extension of Houston, announced herein, the section 1983 complaint and the federal tort claim in the respective cases were filed timely when they were delivered by"
},
{
"docid": "23034003",
"title": "",
"text": "appeal, the Court previously concluded that “there is no reason on the basis of what this record discloses to doubt that petitioner’s date at the top of the letter was an accurate one and that subsequent delays were not chargeable to him.” Fallen v. United States, 378 U.S. 139; 143-44, 84 S.Ct. 1689, 1692, 12 L.Ed.2d 760 (1964). Fallen recognizes that, once a pro se inmate has deposited his document to be filed in the prison mailbox, “the jailer is in effect the clerk of the District Court.” 378 U.S. at 144, 84 S.Ct. at 1692-93 (Stewart, J., concurring). Accordingly, Houston places the burden of proof for the pro se prisoner’s date of delivering his document to be filed in court on the prison authorities, who have the ability to establish the correct date through their logs. United States v. Grana, 864 F.2d 312, 316 (3d Cir.1989). Houston and Fallen demonstrate that the Court will regard the distinct filing disabilities of state or federal pro se prisoners in both civil and criminal cases. In fashioning an equitable resolution to the pro se prisoner’s filing dilemma, the Court was mindful that “the Rules are not, and were not intended to be, a rigid code to have an inflexible meaning irrespective of the circumstances.” Fallen, 378 U.S. at 142, 84 S.Ct. at 1691. Moreover, Houston does not indicate that it should be limited to habeas corpus appeals. Lewis v. Richmond City Police Dep’t, 947 F.2d 733, 736 (4th Cir.1991) (per curiam); Hostler v. Groves, 912 F.2d 1158, 1160 (9th Cir.1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1074, 112 L.Ed.2d 1180 (1991). Using its fairness rationale, other circuits have applied the Houston pro se prisoner filing rule extensively to state and federal inmates and have not limited Houston to its facts. In Lewis, the Fourth Circuit extended Houston to include Federal Rules of Civil Procedure 3 and 5(e) for a pro se state prisoner who filed a 42 U.S.C. § 1983 action. Strikingly similar to Garvey’s case, the Lewis plaintiff-appellant had placed his complaint alleging excessive force at his arrest in the"
}
] |
50308 | mistakes, the judge observed, the prison officials were entitled to qualified immunity from Knowlin’s § 1983 claims because of uncertainty in the case law over a prisoner’s right to refuse different kinds of medical treatment. Although the Supreme Court had made clear that prisoners possess a liberty interest in avoiding consequences qualitatively different from the typical conditions of confinement, see, e.g., Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990); Vitek v. Jones, 445 U.S. 480, 494, 100 S.Ct. 1254, 68 L.Ed.2d 552 (1980), district courts were conflicted over the rights of prisoners to refuse to participate in rehabilitative programs, compare Sundby v. Fiedler, 827 F.Supp. 580, 588 (W.D.Wis.1993) (liberty interest in refusing rehabilitative program), with REDACTED And even if the case law provided a clear rule, the judge added, Knowlin had not met his burden of showing that the substance-abuse treatment resembled other treatments that would deprive him of a liberty interest. Further, Knowlin failed to show that any of the defendant officials was personally involved in determining his need for treatment. Finally, Knowlin’s request for injunctive relief was moot because the Jackson Correctional Institution had removed the treatment requirement as a “need” for him. On appeal Knowlin argues that the district court erred in concluding that he presented insufficient evidence to show that he was deprived of a protected liberty interest. He asserts that the prison deprived him of | [
{
"docid": "11319499",
"title": "",
"text": "injunctive and monetary relief. For purposes of an official capacity claim against former Secretary of the Wisconsin Department of Corrections Patrick Fiedler, the present secretary, Michael Sullivan, is substituted. See Federal Rule of Civil Procedure 25(d). . See also Washington v. Harper, 494 U.S. 210, 227, 110 S.Ct. 1028, 1040, 108 L.Ed.2d 178 (1990) (mentally ill inmate has liberty interest in refusing antipsychotic drugs absent a due process determination that prisoner is dangerous and treatment is in his best interest). . In ruling that Bollig has no protectible liberty interest in being free from participating in the DEP, this court disagrees with the holding in Sundby v. Fiedler, 827 F.Supp. 580 (W.D.Wis.1993). In that case, the court ruled that Gary Sundby, a similarly situated inmate at the Oshkosh Correctional Institution, had a limited liberty interest in being free to refuse attending the DEP. See Id. at 583. In reaching that conclusion, the court did not analyze the source of the right, but merely cited cases recognizing a due process right to be free from forced administration of psychotropic drugs, see Washington v. Harper, 494 U.S. 210, 221, 110 S.Ct. 1028, 1036, 108 L.Ed.2d 178 (1990); or bodily restraint, see Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982); or medical treatment, see White v. Napoleon, 897 F.2d 103 (3d Cir. 1990); or transfer to a mental hospital, see Vitek v. Jones, 445 U.S. 480, 492-93, 100 S.Ct. 1254, 1263-64, 63 L.Ed.2d 552 (1980). As discussed above, this court does not find the right claimed by Bollig to be encompassed by those rights previously identified by the Supreme Court and refuses to extend the scope of a prisoner’s liberty right to include the right to refuse to participate in an educational rehabilitation program. An inmate does not have the right to dictate the terms of his incarceration. As the Seventh Circuit has explained: [A] prisoner's liberty interests are significantly restricted by the fact of his incarceration, and ... prison officials must have broad discretion to dictate policies that promote order and safety for inmates and correctional staff."
}
] | [
{
"docid": "21394740",
"title": "",
"text": "explained that a lawfully convicted prisoner is “constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution.” Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). In order to prevail in an action based on Section 1983 and the Fourteenth Amendment, a prison inmate must demonstrate a deprivation of a liberty interest protected by the Due Process Clause itself, or a violation of a state-created liberty interest. See Morris v. Dann, No. 95-CV-975, 1996 WL 732559, at *3 (N.D.N.Y. Dec. 11, 1996). Cases of the first category — those in which the Due Process Clause has been found to apply by its own force — involve deprivations of a prisoner’s life, liberty, or property much more severe than the allegations advanced by Cespedes. See, e.g., Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (forced ingestion of antihypnotie drugs into prisoner); Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (involuntary commitment of prisoner to mental health facility); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (revocation of probation status to compel return to prison); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (revocation of parole to compel return to prison). As demonstrated by these cases, inherent due process protection has been found to arise where there is an invasion of a prisoner’s bodily integrity, involuntary alteration of a prisoner’s mental treatment, or where there is a revocation of a prisoner’s complete release from institutional life. As the Supreme Court has observed, “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed and is not otherwise viola-tive of the Constitution, the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.” Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547,"
},
{
"docid": "22779328",
"title": "",
"text": "been subjected to “atypical and significant hardship” implicating a protected liberty interest that triggers due process rights at his disciplinary hearing, and, if so, whether those rights were violated. Finally, he is given the opportunity to amend his complaint to allege physical injury within the meaning of § 1997e(e). If his amended complaint alleges physical injury, the District Court must determine whether it is more than de minimis as a predicate to asserting emotional injury. In this context, we reverse the District Court’s dismissal of the complaint and remand for further proceedings not inconsistent with this opinion. . In early 1997, Mitchell filed a \"private complaint” against Officer Wilson, whom he accused of planting contraband under his locker. The record does not reflect how or even whether this private complaint was resolved. . We appreciate the candor and professionalism of the Commonwealth's counsel. We extend as well our appreciation to Mitchell's appointed counsel for the time and talent they have dedicated to this case. . 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.” . Additionally, state prisoners have a protected liberty interest in avoiding restraints that \"exceed[ ] the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force.” Sandin, 515 U.S. at 484, 115 S.Ct. 2293. Examples would be involuntary administration of psychotropic medication, see Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), or involuntary transfer to a state mental hospital for treatment, see Vitek v. Jones, 445 U.S. 480, 494, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980). Mitchell does not contend that his transfer falls into such a category. . Disciplinary custody is the \"maximum restrictive status of confinement\" for inmates in the Pennsylvania prison system. DC-ADM 801 IV(B). Administrative custody is a \"status of confinement for non-disciplinaiy reasons which provides"
},
{
"docid": "15026127",
"title": "",
"text": "Correctional Services (NYSDOCS). The threshold question is whether defendants’ actions deprived plaintiff of his “rights, privileges, or immunities” and if so, are defendants entitled to qualified immunity from plaintiffs suit. Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) (prior to resolving the issue of whether a defendant has properly asserted a qualified immunity defense, a court must determine whether the plaintiff has asserted a violation of a constitutional right.) Plaintiff alleges that defendants violated his rights in several ways. First, he alleges that his due process rights were violated by defendant Mahoney’s denial of his right to an assistant to aid him in preparing for his hearing. Second, plaintiff maintains that he was denied his right to proceed before an impartial official. Finally, plaintiff claims that defendant Coughlin violated his rights by affirming the unconstitutional determination made by defendant Mahoney. B. WHETHER A LIBERTY INTEREST EXISTS IN PLAINTIFF’S CLAIMS Liberty interests protected by the Due Process Clause may arise from either the Due Process Clause itself or from the laws of the states. Sandin, — U.S. -, -, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995). Plaintiff cannot assert a liberty interest as established under the Due Process Clause itself because in a prison context, such interest will generally arise only where a prisoner is to be involuntarily transferred to confinement which is “ ‘qualitatively different’ from the punishment characteristically suffered by a person convicted of a crime and results in ‘stigmatizing consequences.’ ” Id. at -, fn. 4, 115 S.Ct. at 2997, fn. 4 (citing to Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (involuntarily transfer to psychiatric hospital); Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (forced consumption of psychotropic medication against prisoner’s will)). Thus, plaintiffs alleged liberty interest is protected by due process only to the extent that it arises under the laws of New York State and infringes upon his expected terms of confinement. The evaluation of due process under state law requires a determination of whether (1) the state statutes"
},
{
"docid": "15026128",
"title": "",
"text": "of the states. Sandin, — U.S. -, -, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995). Plaintiff cannot assert a liberty interest as established under the Due Process Clause itself because in a prison context, such interest will generally arise only where a prisoner is to be involuntarily transferred to confinement which is “ ‘qualitatively different’ from the punishment characteristically suffered by a person convicted of a crime and results in ‘stigmatizing consequences.’ ” Id. at -, fn. 4, 115 S.Ct. at 2997, fn. 4 (citing to Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (involuntarily transfer to psychiatric hospital); Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (forced consumption of psychotropic medication against prisoner’s will)). Thus, plaintiffs alleged liberty interest is protected by due process only to the extent that it arises under the laws of New York State and infringes upon his expected terms of confinement. The evaluation of due process under state law requires a determination of whether (1) the state statutes or regulations at issue narrowly restrict the power of prison officials to impose the deprivation—giving the inmate the right to avoid it—and (2) the liberty in question is one of “real substance”. Sandin, — U.S. at -, 115 S.Ct. at 2298. Because it is undisputed that the state regulations at issue here narrowly restricted defendants’ right to impose a disciplinary sentence on the plaintiff, my inquiry must determine whether the liberty interest alleged to have been violated was one of “real substance,” e.g. freedom from state action that will “inevitably affect the duration of [a] sentence,” or restraint that imposes “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at -, 115 S.Ct. at 2300. The Sandin Court found that 30 days of disciplinary segregation was “within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life” in a maximum security prison. Thus, Mr. Sandin’s disciplinary sentence was held not to be “atypical and significant” Id. at -,"
},
{
"docid": "11319493",
"title": "",
"text": "a prison job. See, e-g., Wallace v. Robinson, 940 F.2d 243, 249 (7th Cir.1991) (en banc), cert. denied, — U.S. -, 112 S.Ct. 1563, 118 L.Ed.2d 210 (1992); Harris v. Greer, 750 F.2d 617, 618 (7th Cir.1984); Garza v. Miller, 688 F.2d 480, 486 (7th Cir.1982), cert. denied, 459 U.S. 1150, 103 S.Ct. 796, 74 L.Ed.2d 1000 (1983). Thus, in and of themselves, these changes in circumstances are immaterial to the liberty interest analysis. The material issue is whether forced participation in the Demers’ Education Program subjected Bollig to conditions qualitatively different from the punishment characteristically suffered by a person committed of a crime. In Vitek v. Jones, 445 U.S. 480, 482-83, 100 S.Ct. 1254, 1258, 63 L.Ed.2d 552 (1980), the Supreme Court concluded that an escalated degree of confinement in a mental hospital instead of a prison and the stigmatizing effect of being found mentally ill were circumstances which created a liberty interest in being free of such forcible treatment absent notice and an opportunity to be heard. See Id. at 482-83, 100 S.Ct. at 1258. In contrast to Vitek, Bollig does not contend that the Deniers’ Education Program subjected him to a greater degree of confinement or to a qualitatively different type of confinement. He remained at the Oshkosh Correctional Institution, albeit in a different location. Likewise, he does not claim that the transfer had a stigmatizing effect. Any stigma attached to being labeled a sex offender attached to Bollig when he was convicted (for the second time) of sexual assault. Under these circumstances, the court will not stretch the concept of fundamental liberty to encompass a substantive right to be free of forced participation in a purely educational rehabilitation program while confined in a state prison. Consequently, because Bollig has no protectible liberty interest, the Defendants have not deprived him of due process. B. DUE PROCESS Even if Bollig has a limited liberty interest in being free to refuse to participate in the DEP, the undisputed facts show that he has been afforded procedural due process. “The barebones constituents of fair procedure and therefore of due process"
},
{
"docid": "18999118",
"title": "",
"text": "327, 330-331, 106 S.Ct. 662, 664-665, 88 L.Ed.2d 662 (1986); Ketchum v. Alameda County, 811 F.2d 1243, 1245 (9th Cir.1987). It is clear in the present case that the violations alleged constitute state action. The issue in this case is whether a right secured by the Constitution is implicated, and, if so, whether that right was violated. Liberty interests of prison inmates protected by the Fourteenth Amendment may arise from two sources: the Due Process Clause itself and the laws of the States. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868-69, 74 L.Ed.2d 675 (1983); Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987); Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747-48, 75 L.Ed.2d 813 (1983). While a criminal conviction and sentence of imprisonment extinguishes an individual’s right to freedom from confinement for the term of his sentence, certain extraordinary deprivations of a prisoner’s liberty implicate the Due Process Clause itself. Vitek v. Jones, 445 U.S. 480, 493-494, 100 S.Ct. 1254, 1263-1264, 63 L.Ed.2d 552 (1980). Such deprivations must be “qualitatively different from the punishment characteristically suffered by a person convicted of crime.” Id. at 494, 100 S.Ct. at 1264. For example, in Vitek, the Supreme Court found that a prisoner had a liberty interest in freedom from involuntary commitment to a mental hospital. In Washington v. Harper, 494 U.S. 210, 221-222, 110 S.Ct. 1028, 1036-1037, 108 L.Ed.2d 178 (1990), the Court held that an inmate had a liberty interest in freedom from the involuntary administration of psychotropic drugs. Such deprivations implicate the Due Process Clause because they go beyond the “normal limits or range of custody which the conviction has authorized the State to impose.” Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). Where a deprivation falls within the normal limits of custody authorized by the conviction, there is no liberty interest protected by the Due Process Clause itself. However, a state statute or regulation can create a right triggering due process protection “to insure that the state-created right is"
},
{
"docid": "19159393",
"title": "",
"text": "conditions \"exceed! ] the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force.” Sandin, 515 U.S. at 484, 115 S.Ct. 2293 (citing Vitek v. Jones, 445 U.S. 480, 494, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (holding that an involuntary transfer to a mental hospital for the purpose of psychiatric treatment implicated a liberty interest protected by the due process clause); and Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (holding that a prisoner possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment)). In Vitek, for example, the Court concluded that the “stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the kind of deprivations of liberty that requires procedural protections.” 445 U.S. at 494, 100 S.Ct. 1254. Under Vitek and Washington, an inmate subjected to conditions impinging a liberty interest for mental health reasons must still be afforded due process."
},
{
"docid": "19074304",
"title": "",
"text": "2). Dr. Barillas had concerns for his physical safety in dealing with Defendant, ... because of the foreboding quality of his demeanor, the Examiner made the exceptional request for one of the officers to be in the interviewing office at all times. (Id.) Dr. Barillas found Defendant to be oriented as to person, time, place and purpose. “Thought processes were logical, but marked by possible concreteness and occasional incoherence when defensive.” (Id. at 4). Dr. Barillas found Defendant exhibited no signs of psychosis or hallucinations. (Id. at 5). LAW Jails and prisons have the obligation to provide essential medical treatment to those in their custody and have the obligation to protect staff and detainees from physical harm. Detainees retain a liberty interest in refusing unwanted medical treatment. A tension between these interests and obligations not infrequently occurs. In 1980, the Supreme Court determined that an inmate must be afforded procedural due process protections before he can be involuntarily transferred to a mental hospital. Vitek v. Jones, 445 U.S. 480, 495-96, 100 S.Ct. 1254, 1265, 63 L.Ed.2d 552(1980). The administrative procedures required were consistent with those required for a fair hearing in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); written notice of transfer, a hearing before an independent decision-maker, and the opportunity to present evidence and question witnesses. Id. Additionally, the Court determined that the inmate was entitled to some assistance in the process, but there was no majority on whether a lawyer must be appointed to represent him. In a concurring opinion, Justice Powell suggested such assistance could be provided by “competent laymen.” Id. at 500, 92 S.Ct. 2593, 100 S.Ct. at 1267. Ten years later, the Supreme Court determined that procedural due process did not require a judicial hearing before a prisoner could be involuntarily medicated with anti-psychotic drugs. Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). Rather, the Court held that the administrative hearing process developed by the State of Washington in response to Vitek v. Jones satisfied due process guarantees. In the Washington scheme, a prisoner"
},
{
"docid": "19159392",
"title": "",
"text": "from placement at the WRC. According to Townsend, whom we must credit on summary judgment, in February 2006, Breen-Smith told Townsend that he would never go to the WRC because she believed he was faking his symptoms and that there was nothing wrong with him. .According to the defendants, an inmate is placed in “control status” when the inmate is behaving in a disruptive manner. During control status, the institution provides a mattress, light, toilet, sink, ventilation and heating, adequate clothing, essential hygiene supplies and nutritionally adequate meals, but otherwise maintains close control of the inmate's property. R. 48, at 16. . For brief periods of time, Townsend was released from the BAP. Thus, although 280 days elapsed between the first imposition of the BAP and Townsend’s transfer to another facility, he was subjected to the BAP, by his own calculation, for 259 days. . Due process applies when an inmate is subject to conditions that pose an atypical and significant hardship when compared to the ordinary incidents of prison life, and also when the conditions \"exceed! ] the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force.” Sandin, 515 U.S. at 484, 115 S.Ct. 2293 (citing Vitek v. Jones, 445 U.S. 480, 494, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (holding that an involuntary transfer to a mental hospital for the purpose of psychiatric treatment implicated a liberty interest protected by the due process clause); and Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (holding that a prisoner possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment)). In Vitek, for example, the Court concluded that the “stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the kind of deprivations of liberty that requires procedural protections.” 445 U.S. at 494, 100 S.Ct. 1254. Under Vitek and Washington,"
},
{
"docid": "5016162",
"title": "",
"text": "those claims. Although the scope of Mandala’s claims are not entirely clear from the complaint, which uses language derived from different areas of constitutional law, he does expressly invoke the Fifth, Eighth and Fourteenth Amendments. Although the plaintiff does not explicitly mention under which clauses of the amendments he seeks relief, the Court assumes that he invokes his rights to due process and freedom from cruel and unusual punishment. Parenthetically the Court notes that the plaintiffs due process claim might be better brought under the Fourteenth rather than the Fifth Amendment. In any event, given the nature of the claim, a due process claim seems to be the most likely alleged in the Complaint. a. The due process claim The Supreme Court recently held that in order for a prisoner’s due process rights to be implicated, there must be an “atypical, significant deprivation [of rights] in which the state might conceivably create a liberty interest.” Sandin v. Conner, — U.S. -, -, 115 S.Ct. 2293, 2301, 132 L.Ed.2d 418 (1995). Such liberty interests are generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, see, e.g., Vitek [v. Jones, 445 U.S. 480, 493, 100 S.Ct. 1254, 1264, 63 L.Ed.2d 552 (1980) ] (transfer to a mental hospital), and Washington [v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 1036-37, 108 L.Ed.2d 178 (1990) ] (involuntary administration of psychotropic drugs), nonetheless imposes atypical significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin, — U.S. at -, 115 S.Ct. at 2300. Applying this rigorous standard, the Court finds that the plaintiff is unable to establish a due process violation. The essence of Mandala’s claims is that he received inadequate medical care based on the denial of a high fiber diet after his surgery and a denial of proper treatment for his shoulder injury. He does not contend that he was wrongly incarcerated, that his person was unlawfully invaded or that any other “liberty interest”"
},
{
"docid": "11319498",
"title": "",
"text": "ORDER For these reasons, the court ORDERS that the “Defendants’ Motion for Summary Judgment” (filed July 20, 1994) IS GRANTED. IT IS FURTHER ORDERED that this action is dismissed upon its merits. IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 58, the Clerk of Court shall enter a final judgment as a separate document. This judgment shall provide that: This action came on for hearing before the Court, the Honorable Thomas J. Cur-ran, District Judge, presiding, and the issues having been duly heard and a decision having been duly rendered, IT IS ORDERED AND ADJUDGED, that Plaintiff Richard J. Bollig take nothing and that his action against Defendants Patrick J. Fiedler, Donald Gudmanson, Karl Brekke, Dr. Margaret Alexander, Leslie Steckbauer, Michael Zeimet, David Rutter, Jose Rodriguez and Michael Sullivan is dismissed upon its merits. Done and Ordered. . Although Bollig does not state whether he is suing the Defendants in their personal or official capacities, the court will assume that he is suing them in both capacities because he is seeking injunctive and monetary relief. For purposes of an official capacity claim against former Secretary of the Wisconsin Department of Corrections Patrick Fiedler, the present secretary, Michael Sullivan, is substituted. See Federal Rule of Civil Procedure 25(d). . See also Washington v. Harper, 494 U.S. 210, 227, 110 S.Ct. 1028, 1040, 108 L.Ed.2d 178 (1990) (mentally ill inmate has liberty interest in refusing antipsychotic drugs absent a due process determination that prisoner is dangerous and treatment is in his best interest). . In ruling that Bollig has no protectible liberty interest in being free from participating in the DEP, this court disagrees with the holding in Sundby v. Fiedler, 827 F.Supp. 580 (W.D.Wis.1993). In that case, the court ruled that Gary Sundby, a similarly situated inmate at the Oshkosh Correctional Institution, had a limited liberty interest in being free to refuse attending the DEP. See Id. at 583. In reaching that conclusion, the court did not analyze the source of the right, but merely cited cases recognizing a due process right to be free from forced"
},
{
"docid": "9828025",
"title": "",
"text": "“set forth with precision the basis for its decision.” Poe, 853 F.2d at 426. Noble has alleged that the Defendants violated his First and Fourteenth Amendment rights by taking adverse action against him without justification and in retaliation for his contentious behavior while at Grauman. We believe that he has sufficiently asserted violations of clearly established law, and that he has presented genuine issues of material fact in that regard. As a result, we believe that the district court properly denied Defendants qualified immunity. B. Noble’s first allegation, which arises out of the December 16, 1990 incident, states that Defendants violated his rights to substantive and procedural due process. He claims that Defendants lacked the authority to administer antipsychotic drugs and restraints and that the circumstances did not vest them with emergency authority to do so. It is undisputed that Noble retains liberty interests to be free from the conduct alleged. Involuntary commitment to a mental institution substantially restricts individual liberty in many respects, one of which is allowing the state to subject the individual to compulsory treatment. Vitek v. Jones, 445 U.S. 480, 491-92, 494, 100 S.Ct. 1254, 1262-63, 63 L.Ed.2d 552 (1980). Certain freedoms, however, , survive incarceration. The Supreme Court has held that individuals in state custody enjoy protectable liberty interests to be free from bodily restraint, and to refuse medical treatment such as the administration of antipsychotic drugs. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278, 110 S.Ct. 2841, 2851, 111 L.Ed.2d 224 (1990) (citing Vitek, 445 U.S. at 494, 100 S.Ct. at 1264); Youngberg v. Romeo, 457 U.S. 307, 316, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28 (1982); Washington v. Harper, 494 U.S. 210, 221, 110 S.Ct. 1028, 1036, 108 L.Ed.2d 178 (1990). In the instant case, Kentucky law also establishes reasonable expectations of liberty from such measures which merit due process protection. Cf. Harper, 494 U.S. at 221, 110 S.Ct. at 1036; Vitek, 445 U.S. at 488, 100 S.Ct. at 1261. Kentucky statutory law explicitly declares that hospitalized patients enjoy the right to refuse medical treatment as well as the right"
},
{
"docid": "22779329",
"title": "",
"text": "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.” . Additionally, state prisoners have a protected liberty interest in avoiding restraints that \"exceed[ ] the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force.” Sandin, 515 U.S. at 484, 115 S.Ct. 2293. Examples would be involuntary administration of psychotropic medication, see Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), or involuntary transfer to a state mental hospital for treatment, see Vitek v. Jones, 445 U.S. 480, 494, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980). Mitchell does not contend that his transfer falls into such a category. . Disciplinary custody is the \"maximum restrictive status of confinement\" for inmates in the Pennsylvania prison system. DC-ADM 801 IV(B). Administrative custody is a \"status of confinement for non-disciplinaiy reasons which provides closer supervision, control, and protection than is provided in general population.” Commonwealth of Pa., Dep’t of Corr., Administrative Custody Procedures, Policy Statement DC-ADM 802 IV(A) (Oct. 29, 1992). . In performing the inquiry Sandin requires, the District Court on remand will need to consider whether the deplorable conditions of Mitchell's cell during a portion of his disciplinary confinement implicated a protected liberty interest. . 42 U.S.C. 1997e(e) states that \"[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.\" . Mitchell’s complaint specifically requests punitive damages but not nominal damages. As for the latter, however, \"it is not necessary to allege nominal damages.” Allah, 226 F.3d at 251 (quoting Basista v. Weir, 340 F.2d 74, 87 (3d Cir.1965)) (internal quotation marks omitted). Moreover, Mitchell’s complaint seeks \"other relief as it may appear the plaintiff is entitled.\" We construe this \"catch-all” prayer broadly to include a request for nominal damages. Furthermore,"
},
{
"docid": "11510635",
"title": "",
"text": "plaintiffs refusal to move, he was issued Conduct Report No. 492560 and placed in temporary lock-up. On August 24, 1992, a hearing was held on the conduct report at which plaintiff admitted to not following orders and stated that he misunderstood the process. At this time, plaintiff agreed to move to the ordered unit. As punishment for his previous refusal to move, he received five days’ room confinement. OPINION Plaintiffs contention is that defendants violated his Fourteenth Amendment due process rights when they placed him in a sex offender unit within the Oshkosh Correctional Institution in order to force him to participate in the SOTP II program. The due process clause protects certain fundamental rights, one of which is the right to be free from unjustified bodily and mental intrusions. Washington v. Harper, 494 U.S. 210, 221, 110 S.Ct. 1028, 1036, 108 L.Ed.2d 178 (1990) (prisoner possesses a significant liberty interest in avoiding unwanted administration of psychotropic drugs); Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (freedom from bodily restraint recognized as “core” of liberty interest protected by the due process clause); Vitek v. Jones, 445 U.S. 480, 492-93, 100 S.Ct. 1254, 1263-64, 63 L.Ed.2d 552 (1980) (involuntary transfer of inmate to mental institution where he would receive compelled behavior modification treatment implicates liberty interest); White v. Napoleon, 897 F.2d 103, 113 (3rd Cir.1990) (prisoners retain limited right to refuse treatment). However, an inmate’s liberty interest in refusing treatment is not absolute, but is qualified by the legitimate penological objectives of the correction system such as punishment and rehabilitation as well as the prison’s legitimate interest in maintaining safety and security. Washington, 494 U.S. at 223, 110 S.Ct. at 1037; Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). For instance, in Washington v. Harper, 494 U.S. at 223, 110 S.Ct. at 1037, the Supreme Court restated the principle set out in Turner, 482 U.S. at 89, 107 S.Ct. at 2261, that the standard courts should use in reviewing prison policies that implicate constitutional rights is an inquiry whether the regulation"
},
{
"docid": "9828026",
"title": "",
"text": "to compulsory treatment. Vitek v. Jones, 445 U.S. 480, 491-92, 494, 100 S.Ct. 1254, 1262-63, 63 L.Ed.2d 552 (1980). Certain freedoms, however, , survive incarceration. The Supreme Court has held that individuals in state custody enjoy protectable liberty interests to be free from bodily restraint, and to refuse medical treatment such as the administration of antipsychotic drugs. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278, 110 S.Ct. 2841, 2851, 111 L.Ed.2d 224 (1990) (citing Vitek, 445 U.S. at 494, 100 S.Ct. at 1264); Youngberg v. Romeo, 457 U.S. 307, 316, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28 (1982); Washington v. Harper, 494 U.S. 210, 221, 110 S.Ct. 1028, 1036, 108 L.Ed.2d 178 (1990). In the instant case, Kentucky law also establishes reasonable expectations of liberty from such measures which merit due process protection. Cf. Harper, 494 U.S. at 221, 110 S.Ct. at 1036; Vitek, 445 U.S. at 488, 100 S.Ct. at 1261. Kentucky statutory law explicitly declares that hospitalized patients enjoy the right to refuse medical treatment as well as the right “to be free from unreasonable use of seclusion and restraint.” Ky.Rev. Stat.Ann. § 202A.191(h) & (i). Therefore, the liberty interests which Noble invokes are firmly grounded in both the federal Constitution and state law. Although Noble’s liberty interests are clearly identifiable under both the Constitution and state statutory law, we must assess the extent of the procedural process due before we may determine whether the conduct alleged constitutes a violation of those interests. This requires us to balance Noble’s interests against the countervailing interests of the state. Cruzan, 497 U.S. at 278, 110 S.Ct. at 2851; see also Youngberg, 457 U.S. at 320-21, 102 S.Ct. at 2460-61. The Court has recognized that while the mental patient enjoys profound liberty interests, it has also noted that “[wjhere an inmate’s mental disability is the root cause of the threat he poses to the inmate population, the State’s interest in decreasing the danger to others necessarily encompasses an interest in providing him with medical treatment for his illness.” Harper, 494 U.S. at 225-26, 110 S.Ct. at 1039. Thus,"
},
{
"docid": "15067593",
"title": "",
"text": "liberty interest inquiry on the nature of the deprivation, that is, the restraint, experienced by the inmate, rather than upon the language of the institution’s regulation. See Beverati v. Smith, 120 F.3d 500, 503, n. 3 (4th Cir.1997). As examples of restraints that “exeeed[] the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force,” the Supreme Court gave two. First, the Court cited Vitek v. Jones, which held that an inmate’s transfer to a mental hospital implicated a liberty interest protected by the due process clause itself. 445 U.S. 480, 494, 100 S.Ct. 1254, 1264, 63 L.Ed.2d 552 (1980). The Vitek Court reasoned that involuntary commitment and treatment in a mental hospital were “qualitatively different from the punishment characteristically suffered by a person convicted of a crime,” as well as resulted in “stigmatizing consequences” for the inmate. Id. at 493, 100 S.Ct. at 1264. Second, the Court cited Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 1036-37, 108 L.Ed.2d 178 (1990), which held that an inmate had retained a liberty interest, which was constitutionally protected, from the involuntary administration of psychotropic drugs. It can be inferred from these examples that the type of restraint at issue is one that is essentially outside what would be expected in a prison setting. It could be further inferred that the second type of restraint — one that “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” — is one that is expected in the ordinary prison setting but is still atypical and, of course, also imposes a significant hardship. Thus, with this reading of Sandin, the plaintiffs here could argue that use of the hitching post violated either, or both, of these types of restraints — that is, it is totally outside what would be expected in a prison setting or it is expected in the ordinary prison setting but is still atypical and, of course, also imposes a significant hardship. Within the confines of the language in Sandin, the two"
},
{
"docid": "23098401",
"title": "",
"text": "liberty interest that is protected by the Due Process Clause.” 445 U.S. at 487, 100 S.Ct. 1254. While the Court based this holding, in part, on a state-created liberty interest, it also held that the prisoner’s liberty interest existed separate and apart from the state regulation. Specifically, the Court noted that the stigmatizing characterization of the prisoner as mentally ill, when coupled with the transfer to an asylum to participate in mandatory behavioral therapy, “constituted a major change in the conditions of confinement amounting to a grievous loss that should not be imposed without the opportunity for notice and an adequate hearing.” Id. at 488, 100 S.Ct. 1254 (quotation marks omitted); compare Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (holding that a prisoner had an independent liberty interest in being free from the arbitrary administration of psychotropic drugs), with Meachum, 427 U.S. at 224, 96 S.Ct. 2532 (holding that the Due Process Clause does not independently create a liberty interest in prisoners to be free from intrastate prison transfers). The Court reasoned that despite the prisoner’s conviction for robbery, he still “retained a residuum of liberty that would be infringed ... without complying with minimum requirements of due process.” Vitek, 445 U.S. at 491, 100 S.Ct. 1254. In turn, the Court concluded that transfer to a mental institution was “ ‘qualitatively different’ from the punishment characteristically suffered by a person convicted of crime, and had ‘stigmatizing consequences.’ ” Sandin, 515 U.S. at 479 n. 4, 115 S.Ct. 2293 (citing Vitek, 445 U.S. at 493-94, 100 S.Ct. 1254) (quotation marks omitted). Thus, when determining an inmate’s due process right “to be free from ... unjustified intrusions on personal security[,]” Vitek instructs courts to consider “[c]ompelled treatment in the form of mandatory behavior modification programs[.]” 445 U.S. at 492, 100 S.Ct. 1254. Relying on Vitek, Renchenski argues that the District Court erred in not recognizing that the Due Process Clause independently conferred upon him a liberty interest in not being classified as a sex offender — which he argues is even more stigmatizing than being labeled"
},
{
"docid": "11319490",
"title": "",
"text": "succeed on his claim unless he can prove that he was deprived of a constitutionally protected property or liberty interest. See Maust v. Headley, 959 F.2d 644, 647 (7th Cir.1992). Bollig believes that he has a protected interest in being free from mandatory, involuntary participation in the Deniers’ Education Program while he is a prisoner. Thus, the facts alleged implicate a liberty rather than a property interest. Liberty interests “may arise from two sources — the Due Process Clause itself and the laws of the States.” Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). See also Colon v. Schneider, 899 F.2d 660, 666 (7th Cir.1990). Bollig has not pointed to any Wisconsin statute or regulation which confers upon him a right to refuse placement in the DEP. Nevertheless, in the absence of such state laws, a prisoner can rely directly upon the Due Process Clause itself for an analogous liberty interest. See Felce v. Fiedler, 974 F.2d 1484, 1487 (7th Cir.1992). But again, Bollig has not met his burden of demonstrating that the right to refuse to participate in a prison educational program is a right contained in the Bill of Rights and incorporated by the Fourteenth Amendment to apply to the states. The only remaining avenue for Bollig is to show that the Defendants deprived him of a fundamental liberty which has no specific textual basis in the Due Process Clause itself. In general, courts have recognized a fundamental right to be free of forced treatment in a prison setting only when the treatment involves the administration of mind-altering drugs, see, e.g., Riggins v. Nevada, — U.S. -, -, 112 S.Ct. 1810, 1815, 118 L.Ed.2d 479 (1992) (forced administration of antipsychotic drugs during trial ), or transfer to a different degree or kind of confinement, see e.g., Vitek v. Jones, 445 U.S. 480, 493, 100 S.Ct. 1254, 1264, 63 L.Ed.2d 552 (1980) (transfer of prisoner to mental hospital). Bollig’s situation is distinguishable from these cases. The Deniers’ Program is not a treatment program but an educational program, in which sex offenders are"
},
{
"docid": "11510636",
"title": "",
"text": "recognized as “core” of liberty interest protected by the due process clause); Vitek v. Jones, 445 U.S. 480, 492-93, 100 S.Ct. 1254, 1263-64, 63 L.Ed.2d 552 (1980) (involuntary transfer of inmate to mental institution where he would receive compelled behavior modification treatment implicates liberty interest); White v. Napoleon, 897 F.2d 103, 113 (3rd Cir.1990) (prisoners retain limited right to refuse treatment). However, an inmate’s liberty interest in refusing treatment is not absolute, but is qualified by the legitimate penological objectives of the correction system such as punishment and rehabilitation as well as the prison’s legitimate interest in maintaining safety and security. Washington, 494 U.S. at 223, 110 S.Ct. at 1037; Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). For instance, in Washington v. Harper, 494 U.S. at 223, 110 S.Ct. at 1037, the Supreme Court restated the principle set out in Turner, 482 U.S. at 89, 107 S.Ct. at 2261, that the standard courts should use in reviewing prison policies that implicate constitutional rights is an inquiry whether the regulation or program is “reasonably related to legitimate penological interests.” In upholding a state regulation that provided for the forced administration of psychotropic drugs, the Court focused on the significant penological interest in ensuring the safety of prison staff and the safety of other prisoners as well as the medical needs of the mentally disabled and violent inmate. Id. 494 U.S. at 225, 110 S.Ct. at 1038. See also United States v. Watson, 893 F.2d 970, 980 (8th Cir.) (“Institutions such as federal prisons not only have a legitimate interest but also a duty to prevent injury to the mentally ill prisoner, other inmates, and staff’) (citing Youngberg v. Romeo, 457 U.S. at 324, 102 S.Ct. at 2462), vacated on other grounds, 900 F.2d 1322 (8th Cir), cert. denied, 497 U.S. 1006, 110 S.Ct. 3243, 111 L.Ed.2d 754 (1990). Plaintiffs case differs from these cases in that the SOTP II policy is a treatment and education program that is carried out without using of physical restraints, injections or other bodily intrusions. Although this distinction lessens the"
},
{
"docid": "15067592",
"title": "",
"text": "of restraints can be distinguished. Prior to the Sandin decision, the Supreme Court had held that state administrative regulations could create federal ly enforceable liberty interests by establishing “ ‘substantial predicates’ to govern official decision-making” and “by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 462, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989); see also Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871-72, 74 L.Ed.2d 675 (1983). The Sandin Court rejected this approach because it “encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges,” thereby creating “disincentives for states to codify prison management procedures in the interest of uniform treatment” and leading “to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone.” Sandin, 515 U.S. at 482, 115 S.Ct. at 2299. By adopting the new standard, the Court endeavored to focus the liberty interest inquiry on the nature of the deprivation, that is, the restraint, experienced by the inmate, rather than upon the language of the institution’s regulation. See Beverati v. Smith, 120 F.3d 500, 503, n. 3 (4th Cir.1997). As examples of restraints that “exeeed[] the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force,” the Supreme Court gave two. First, the Court cited Vitek v. Jones, which held that an inmate’s transfer to a mental hospital implicated a liberty interest protected by the due process clause itself. 445 U.S. 480, 494, 100 S.Ct. 1254, 1264, 63 L.Ed.2d 552 (1980). The Vitek Court reasoned that involuntary commitment and treatment in a mental hospital were “qualitatively different from the punishment characteristically suffered by a person convicted of a crime,” as well as resulted in “stigmatizing consequences” for the inmate. Id. at 493, 100 S.Ct. at 1264. Second, the Court cited Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 1036-37, 108 L.Ed.2d 178 (1990),"
}
] |
633776 | 866 (1983)). As the Eleventh Circuit noted in Ma-necke, “[although none of the various opinions [in Guardians] garnered majority support, a reading of them reveals that at least five Justices would not allow compensatory relief to a private plaintiff under Title VI absent proof of discriminatory intent.” Manecke, 762 F.2d at 922 n. 8 (citing Guardians, 463 U.S. at 3235, 103 S.Ct. at 3235 n. 27). At least one court has held that compensatory damages as used in the context of Title VI means something different from its ordinary meaning. Bradford v. Iron County C-4 School Dist., 36 F.E.P. Cases 1296, 1300 (E.D.Mo.1984). Compensatory damages is an expansive term which would normally include damages for humiliation and emotional distress. REDACTED As used in the context of employment discrimination, the term compensatory damages has been defined as including retrospective relief in the form of back pay, reinstatement and attorneys’ fees, but does not include damages for mental suffering or humiliation. Bradford, 36 F.E.P. Cases at 1301-2. More recently, and in the context of the Rehabilitation Act directly, the Supreme Court has held that a “plaintiff who alleges intentional discrimination [may] bring an equitable action for backpay.” Consolidated Rail Corp., 465 U.S. at 630, 104 S.Ct. at 1252. The Court, however, did not decide to what extent, if any, a plaintiff may recover money damages under § 504. Id. Lacking clear guidance from cases construing the Rehabilitation Act itself or | [
{
"docid": "23084277",
"title": "",
"text": "court referred to an award of back pension benefits as “compensatory damages,” the Third Circuit later referred to Rosen as a case of “equitable restitution.” Richerson v. Jones, 551 F.2d 918, 927 n.13 (3d Cir. 1977). As we note in the text, infra, moreover, we consider a restoration of lost work benefits such as pension benefits to be within the equitable remedies available in Title VII cases. . This section states in relevant part: If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. . Courts have rarely been precise in defining whether requested relief in Title VII cases is for “damages” or an equitable remedy. Black’s Law Dictionary defines “compensatory damages” as damages “such as will compensate the injured party for the injury sustained and nothing more.” While certain types of equitable monetary relief such as backpay or restoration of other lost work benefits could fit this rather expansive definition, the cases holding that “compensatory damages” are unavailable in Title VII actions uniformly deal with either claims for emotional distress (or pain and suffering) or else requests for damages resulting from the consequences of an adverse employment action, such as a ruined credit rating. See, e.g., Pearson v. Western Electric Co., 542 F.2d 1150, 1151 (10th Cir. 1976) (plaintiff requesting “compensatory damages” for humiliation and loss of credit rating). Walker’s damage claims fall within this latter category, which more correctly is termed “consequential damages.”"
}
] | [
{
"docid": "8930243",
"title": "",
"text": "damages, the Court determines that plaintiff would be limited to equitable relief. Plaintiff requests compensatory and punitive damages. Courts are divided as to whether monetary damages are available to a plaintiff in a § 504 case. Manual on Employment Discrimination and Civil Rights Actions in the Federal Courts, at F1-20. The Supreme Court has expressly declined to decide “the extent to which money damages are available under § 504.” Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 1252, 79 L.Ed.2d 568 (1984). The Supreme Court has allowed back pay and similar types of relief. Id. The remedies allowed in § 504 are set forth in 29 U.S.C. § 794a. Section 794a(a)(2) states that: The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title. The Supreme Court also is undecided as to whether non-equitable damages apply to Title VI claims. Id., 104 S.Ct. at 1252 (citing Guardians Assn. v. Civil Service Comm’n of New York City, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983)). In DuVall v. Postmaster General, 585 F.Supp. 1374, 1377 (D.D.C.1984), aff'd w/o op., 774 F.2d 510 (D.C.Cir.1985), the court held that “it is clear that compensatory and punitive damages are unavailable under Title VII and the Rehabilitation Act, which call instead for equitable relief.” The Court agrees with the finding in DuVall that nonequitable damages are unavailable under the Rehabilitation Act. Id. To hold that compensatory and punitive damages are available would be to engage in judicial activism. If Congress feels that additional remedies are necessary to protect the rights of handicapped individuals, Congress must make that law, not this Court. Accordingly, the Court grants defendant’s motion to dismiss on this issue. Claim for Negligent Infliction of Emotional Distress Defendant correctly points out that plaintiff fails to state a claim for negligent infliction of emotional distress. The"
},
{
"docid": "4766040",
"title": "",
"text": "employment discrimination, the term compensatory damages has been defined as including retrospective relief in the form of back pay, reinstatement and attorneys’ fees, but does not include damages for mental suffering or humiliation. Bradford, 36 F.E.P. Cases at 1301-2. More recently, and in the context of the Rehabilitation Act directly, the Supreme Court has held that a “plaintiff who alleges intentional discrimination [may] bring an equitable action for backpay.” Consolidated Rail Corp., 465 U.S. at 630, 104 S.Ct. at 1252. The Court, however, did not decide to what extent, if any, a plaintiff may recover money damages under § 504. Id. Lacking clear guidance from cases construing the Rehabilitation Act itself or Title VI, this court will also look to Title VII for guidance in determining what remedies are available to successful plaintiffs in employment discrimination suits. Such a comparison is particularly appropriate here since the plaintiffs claim under the Rehabilitation Act is brought to redress discrimination in employment, and Title VII was passed to redress discrimination in the workplace. Bradford, 36 F.E.P. Cases at 1301. The Eleventh Circuit held, in Walker v. Ford Motor Company, 684 F.2d at 1364, that “compensatory and punitive damages [were] unavailable in Title VII suits.” In a footnote of the opinion the panel noted that compensatory damages did not refer to “back pay or restoration or other lost work benefits,” but refers instead to “claims for emotional distress (or pain and suffering) or else requests for damages resulting from the consequences of an adverse employment action such as a ruined credit rating.” Id. at n. 16. As observed by the court in Bradford, it would be “unjust to permit a larger recovery to a worker who was fired solely because of a handicap than would be awarded to a person fired solely because of her race, sex or religion.” Bradford, 36 F.E.P. Cases at 1301. The Rehabilitation Act as well as Title VI, are products of Spending Clause legislation. Id. It can be argued that withdrawal of federal funds may be a sufficient incentive to prevent future acts of discrimination. Id. Yet, as the"
},
{
"docid": "14950928",
"title": "",
"text": "463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983). In Guardians, black and Hispanic police officers brought suit asserting discrimination under, inter alia, Title VI due to disproportionate layoffs resulting from allegedly discriminatory examinations. The district court, finding discriminatory intent need not be proved under Title VI, granted relief for the plaintiffs. The court of appeals for the Second Circuit reversed the decision as to the Title VI claim, concluding proof of discriminatory intent was necessary. Although the Supreme Court was unable to establish a majority opinion, reading the various opinions of the Court, it is clear that five members concluded discriminatory intent is not a prerequisite to a Title VI claim. Id. at 584 n. 2, 103 S.Ct. at 3223 n. 2. Additionally, among the several opinions \"at least five Justices would not allow compensatory relief to a private plaintiff under Title VI absent proof of discriminato ry intent.” Manecke v. School Bd., 762 F.2d 912, 921-22 n. 8 (11th Cir.1985) (emphasis in original) (citing Guardians, 463 U.S. at 607 n. 27, 103 S.Ct. at 3235 n. 27), cert. denied, 474 U.S. 1062, 106 S.Ct. 809, 88 L.Ed.2d 784 (1986). Therefore, even though the Guardians opinion indicates compensatory damages would be unavailable in a case of unintentional discrimination, in cases of intentional discrimination, the availability of compensatory damages was left unclear. The Eleventh Circuit, attempting to interpret the Guardians holding, noted that “[although it seems clear that the judgment of Guardians Association precludes a cause of action for compensatory damages for unintentional discrimination, we believe the various opinions of a majority of the Justices simply leaves open the question whether compensatory damages for intentional discrimination may be sought.” Franklin v. Gwinnett County Pub. Schs., 911 F.2d 617, 621 (11th Cir.1990), rev’d, — U.S. -, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). In Franklin, a high school student brought suit under Title IX, alleging sexual harassment by a teacher. The Eleventh Circuit analogized the Guardians Title VI holding to the Title IX claim and found compensatory damages were not available. Id. at 622. The Supreme Court, however, reversed the"
},
{
"docid": "5374185",
"title": "",
"text": "§ 794(a) (1991 Supp.), provides: No otherwise qualified individual with handicaps ... shall, solely by reason of his or her handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.... Defendants argue that, even if Eastman has properly alleged a violation of § 504, her retirement in 1989 extinguished any remaining viable claims for relief. A claim for back pay was not made, inasmuch as the discrimination charged by Eastman did not deprive her of employment opportunities. Similarly, her retirement obviates the need for declaratory relief. We need only consider whether compensatory damages for “pain and suffering” may be awarded under § 504. Section 505(a)(2) of the Rehabilitation Act provides that “the remedies, procedures, and rights set forth in Title VI of the Civil Rights Act of 1964” are available to persons aggrieved by violations of § 504. 29 U.S.C. § 794a(a)(2) (1982). Title VI prohibits discrimination on the ground of race, color or national origin in federally assisted programs. 42 U.S.C. § 2000d (1981). The specific extent and nature of recoverable damages under these statutes, however, have not yet been definitively decided by the Supreme Court or by this Court; other circuit and district courts, moreover, are divided on the question. We begin with what clearly is recoverable in a § 504 or a Title VI action. Section 504, at least in a case of intentional discrimination, “authorizes ... an equitable action for back pay.” Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 630, 104 S.Ct. 1248, 1252, 79 L.Ed.2d 568 (1984) (§ 504). Likewise, injunctive and declaratory relief (including reinstatement) aimed at rectifying a discriminatory practice may be ordered. See, e.g., Drayden v. Needville Indep. School Dist., 642 F.2d 129, 132-33 (5th Cir.1981). The Rehabilitation Act provides explicit authority for an award of attorney’s fees. 29 U.S.C. § 794a(b). The gray area is “compensatory damages” as that term is understood to encompass damages for physical and mental suffering. Our analysis of the extent of “the remedies ... set forth in Title VI” requires"
},
{
"docid": "5374186",
"title": "",
"text": "42 U.S.C. § 2000d (1981). The specific extent and nature of recoverable damages under these statutes, however, have not yet been definitively decided by the Supreme Court or by this Court; other circuit and district courts, moreover, are divided on the question. We begin with what clearly is recoverable in a § 504 or a Title VI action. Section 504, at least in a case of intentional discrimination, “authorizes ... an equitable action for back pay.” Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 630, 104 S.Ct. 1248, 1252, 79 L.Ed.2d 568 (1984) (§ 504). Likewise, injunctive and declaratory relief (including reinstatement) aimed at rectifying a discriminatory practice may be ordered. See, e.g., Drayden v. Needville Indep. School Dist., 642 F.2d 129, 132-33 (5th Cir.1981). The Rehabilitation Act provides explicit authority for an award of attorney’s fees. 29 U.S.C. § 794a(b). The gray area is “compensatory damages” as that term is understood to encompass damages for physical and mental suffering. Our analysis of the extent of “the remedies ... set forth in Title VI” requires an exploration of the murky waters of Congressional intent. The Supreme Court made some halting steps in this regard in Guardian’s Assoc. v. Civil Service Comm. of City of N.Y., 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983). For our purposes, Guardian’s provides a starting point to the extent that a majority of the Court agreed, albeit by varying rationales, that intentional discrimination is a prerequisite to an award of any sort of “compensatory damages” to a private litigant in a Title VI case. See id., at 607 n. 27, 103 S.Ct. at 3235 n. 27. The term “compensatory damages,” however, was used in a limited sense to describe only retrospective equitable relief of the type available under Title VII (42 U.S.C. § 2000e et seq.). “Compensatory” relief in Guardian’s encompassed only equitable monetary relief, i.e. back pay, and injunctive relief, and the Justices used the term in discussing the distinction between retrospective and prospective relief. See Guardian’s, 463 U.S. at 600-607, 103 S.Ct. at 3231-35 (White, J., announcing judgment of the Court);"
},
{
"docid": "18264891",
"title": "",
"text": "at 612 & n. 1, 106 S.Ct. 2705 (O'Connor, J., concurring in the judgment) (expressly reserving the question whether damages are available for claims of intentional discrimination). . Less than a year after a badly fractured Court decided Guardians, a unanimous Court held, ”[w]ithout determining the extent to which money damages are available under § 504, [that it is] clear that § 504 authorizes a plaintiff who alleges intentional discrimination to bring an equitable action for back-pay,” reasoning this way: In Guardians, a majority of the Court expressed the view that a private plaintiff under Title VI could recover backpay; and no Member of the Court contended that backpay was unavailable, at least as a remedy for intentional discrimination. It is unnecessary to review here the grounds for this interpretation of Title VI. It suffices to state that we now apply this interpretation to § 505(a)(2), which, as we have noted, provides to plaintiffs under § 504 the remedies set forth in Title VI. Therefore, respondent, having alleged intentional discrimination, may recover backpay in the present § 504 suit. Consol. Rail Corp. v. Danone, 465 U.S. 624, 630-31, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984) (citation and footnotes omitted). . Justice Marshall argued that private plaintiffs should be able to recover compensatory relief for both intentional and unintentional discrimination. See Guardians, 463 U.S. at 615, 103 S.Ct. 3221 (Marshall, J., dissenting). . The parties agreed that Tille VI “served as the legislative antecedent for Title IX, and that consequently, the jurisprudential analysis of the Justices' opinions in Guardians ... is applicable in a Title IX context.” Franklin, 911 F.2d at 619 (citation and footnote omitted). . Judge Johnson concurred specially to state that he would have based the panel's decision on Drayden alone, without considering the “dicta” in Justice White’s opinion in Guardians. . The Court noted that, in any case, its unanimous decision in Consolidated Rail had foreclosed the argument “that Spending Clause statutes do not authorize monetary awards for intentional violations.” Franklin, 503 U.S. at 75, 112 S.Ct. 1028. . The majority, for instance, was careful to note:"
},
{
"docid": "5374187",
"title": "",
"text": "an exploration of the murky waters of Congressional intent. The Supreme Court made some halting steps in this regard in Guardian’s Assoc. v. Civil Service Comm. of City of N.Y., 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983). For our purposes, Guardian’s provides a starting point to the extent that a majority of the Court agreed, albeit by varying rationales, that intentional discrimination is a prerequisite to an award of any sort of “compensatory damages” to a private litigant in a Title VI case. See id., at 607 n. 27, 103 S.Ct. at 3235 n. 27. The term “compensatory damages,” however, was used in a limited sense to describe only retrospective equitable relief of the type available under Title VII (42 U.S.C. § 2000e et seq.). “Compensatory” relief in Guardian’s encompassed only equitable monetary relief, i.e. back pay, and injunctive relief, and the Justices used the term in discussing the distinction between retrospective and prospective relief. See Guardian’s, 463 U.S. at 600-607, 103 S.Ct. at 3231-35 (White, J., announcing judgment of the Court); 463 U.S. at 624-633, 103 S.Ct. at 3244-49 (Marshall, J., dissenting); 463 U.S. at 636-638, 103 S.Ct. at 3250-51 (Stevens, J., dissenting). Guardian’s, then, should be read to authorize the recovery of only equitable back pay damages. We will assume that Eastman’s allegations of broken promises and repeated failures to accommodate her suffice to set forth a claim of intentional discrimination. We proceed, then, to first review how the courts have addressed the parameters of allowable “compensatory damages” recoverable in an action to redress violations of § 504 or Title VI. B. The leading case espousing the view that § 504 does permit recovery of a broad range of “compensatory damages” is Miener v. State of Missouri, 673 F.2d 969 (8th Cir.), cert. denied, 459 U.S. 909, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982). Proceeding from the general propositions that “[t]he existence of a statutory right implies the existence of all necessary and appropriate remedies” and that “the right to seek money damages for civil rights violations is an accepted feature of the American judicial"
},
{
"docid": "4766039",
"title": "",
"text": "are recoverable under Title VI has been revealed only through a “badly fragmented decision.” Manecke, 762 F.2d at 922 n. 8 (referring to Guardians Ass’n v. Civil Service Comm’n., 463 U.S. 682, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983)). As the Eleventh Circuit noted in Ma-necke, “[although none of the various opinions [in Guardians] garnered majority support, a reading of them reveals that at least five Justices would not allow compensatory relief to a private plaintiff under Title VI absent proof of discriminatory intent.” Manecke, 762 F.2d at 922 n. 8 (citing Guardians, 463 U.S. at 3235, 103 S.Ct. at 3235 n. 27). At least one court has held that compensatory damages as used in the context of Title VI means something different from its ordinary meaning. Bradford v. Iron County C-4 School Dist., 36 F.E.P. Cases 1296, 1300 (E.D.Mo.1984). Compensatory damages is an expansive term which would normally include damages for humiliation and emotional distress. Walker v. Ford Motor Co., 684 F.2d 1355, 1364 n. 16 (11th Cir.1982). As used in the context of employment discrimination, the term compensatory damages has been defined as including retrospective relief in the form of back pay, reinstatement and attorneys’ fees, but does not include damages for mental suffering or humiliation. Bradford, 36 F.E.P. Cases at 1301-2. More recently, and in the context of the Rehabilitation Act directly, the Supreme Court has held that a “plaintiff who alleges intentional discrimination [may] bring an equitable action for backpay.” Consolidated Rail Corp., 465 U.S. at 630, 104 S.Ct. at 1252. The Court, however, did not decide to what extent, if any, a plaintiff may recover money damages under § 504. Id. Lacking clear guidance from cases construing the Rehabilitation Act itself or Title VI, this court will also look to Title VII for guidance in determining what remedies are available to successful plaintiffs in employment discrimination suits. Such a comparison is particularly appropriate here since the plaintiffs claim under the Rehabilitation Act is brought to redress discrimination in employment, and Title VII was passed to redress discrimination in the workplace. Bradford, 36 F.E.P. Cases at"
},
{
"docid": "10452112",
"title": "",
"text": "Cir.1983). Accord Pruitt v. Illinois Township High School District 214, No. 83 C 4346, slip op. (N.D.Ill., January 20, 1984) [Available on WESTLAW, DCT database] (money damages unavailable under Title IX). See also Burroughs v. Hills, 564 F.Supp. 1007 (N.D.Ill.1983), modified on other grounds, 741 F.2d 1525 (7th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2321, 85 L.Ed.2d 840 (1985) (question of whether a private cause of action exists is distinct from what relief is available; greater hesitancy to imply cause of action for damages rather than equitable relief; citing Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979)). As authority to support their position that damages are available for violations of Title IX, plaintiffs cite Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984). In Darrone, the court clarified the scope of a private right of action to enforce § 504 of the Rehabilitation Act of 1973. In so doing, the court recognized that § 504 was virtually identical to § 601 of Title VI. In fact, the remedies set forth in Title VI are specifically made available for violations of the Rehabilitation Act. Id. at 626, 104 S.Ct. at 1250. While the Supreme Court did not determine the extent to which money damages are available under § 504, it did state, “we think it clear that § 504 authorizes a plaintiff who alleges intentional discrimination to bring an equitable action for backpay.” Id. at 630, 104 S.Ct. at 1252. In making this finding, the court held that, “in Guardians Assn. v. Civil Service Comm’n of New York City, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), a majority of the Court expressed the view that a private plaintiff under Title VI could recover back-pay; and no member of the Court contended that backpay was unavailable, at least as a remedy for intentional discrimination.” Id. Accordingly, the Supreme Court recognizes that backpay is an appropriate remedy for intentional violations of Title VI. Therefore, it would appear that money damages are available for intentional violations of Title"
},
{
"docid": "4766041",
"title": "",
"text": "1301. The Eleventh Circuit held, in Walker v. Ford Motor Company, 684 F.2d at 1364, that “compensatory and punitive damages [were] unavailable in Title VII suits.” In a footnote of the opinion the panel noted that compensatory damages did not refer to “back pay or restoration or other lost work benefits,” but refers instead to “claims for emotional distress (or pain and suffering) or else requests for damages resulting from the consequences of an adverse employment action such as a ruined credit rating.” Id. at n. 16. As observed by the court in Bradford, it would be “unjust to permit a larger recovery to a worker who was fired solely because of a handicap than would be awarded to a person fired solely because of her race, sex or religion.” Bradford, 36 F.E.P. Cases at 1301. The Rehabilitation Act as well as Title VI, are products of Spending Clause legislation. Id. It can be argued that withdrawal of federal funds may be a sufficient incentive to prevent future acts of discrimination. Id. Yet, as the court in Bradford, concluded, it would undermine the intent of Congress to provide relief to victims of discrimination by allowing only prospective injunctive relief or by relying on the withdrawal of future federal funds from the discriminating party. Id. The Supreme Court noted in Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985), that “[a]ny interpretation of § 504 must ... be responsive to two powerful but counterveiling .considerations — the need to give effect to the statutory objectives and the desire to keep § 504 within manageable bounds.” This court, therefore, concludes that the balance is best struck by allowing “equitable monetary damages similar to those recoverable under Title VII and [by denying] damages for mental suffering or humiliation.” Id. The damages available to the plaintiff under § 504 include reinstatement, backpay and attorneys’ fees. Accordingly, it is hereby ORDERED AND ADJUDGED that the alternative motion of the defendants, Bro-ward County, et al., to strike the plaintiff’s request for damages under Count IX of the plaintiff’s amended complaint is"
},
{
"docid": "3161696",
"title": "",
"text": "230, 74 L.Ed.2d 171, 182 (1982), that § 504 \"has been interpreted to provide a cause of action for compensatory damages.” Powell, 699 F.2d at 1082. We affirmed the district court’s refusal to award damages, though, because we were unable to discern any unlawful discrimination. Four months after this court decided Powell, the Supreme Court handed down Guardians Ass’n v. Civil Serv. Comm'n., 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), a badly fragmented decision which construed Title VI. Although none of the various opinions garnered majority support, a reading of them reveals that at least five Justices would not allow compensatory relief to a private plaintiff under Title VI absent proof of discriminatory intent. See id. 103 S.Ct. at 3235 n. 27. More recently, the Supreme Court, in. Consol. Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984), explicitly applied Title VI jurisprudence to a § 504 claim. The plaintiff in Darrone brought suit under § 504 for backpay. Mindful of the 1978 amendments to the Rehabilitation Act, the court found it necessary to examine its Title VI decision in Guardians. The Court stated; \"In Guardians ... a majority of the Court expressed the view that a private plaintiff under Title VI could recover backpay; and no members of the court contended that backpay was unavailable, at least as a remedy for intentional discrimination.” Id. 465 U.S. at -, 104 S.Ct. at 1252, 79 L.Ed.2d at 574. The Court applied this interpretation of Title VI to the § 504 claim before it, and concluded \"that § 504 authorizes a plaintiff who alleges intentional discrimination to bring an equitable action for backpay.\" Id. 465 U.S. at --, 104 S.Ct. at 1252, 79 L.Ed.2d at 574. The Court unfortunately did not determine \"the extent to which money damages are available under § 504.\" Id. At least one circuit, the new Fifth, reads Guardians, as did the Court in Darrone, as fully applicable in the § 504 context. In Marvin H. v. Austin Indep. School Dist., 714 F.2d 1348 (5th Cir.1983), the court held in"
},
{
"docid": "4766038",
"title": "",
"text": "by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.... As noted by the Supreme Court in Consolidated Rail, “[t]he language of th[is] section is virtually identical to that of § 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000(d)....” Id. at 626, 104 S.Ct. at 1250. In 1978, Congress amended the Rehabilitation Act of 1973, and added section 505(a)(2), 29 U.S.C. § 794a. Section 505(a)(2) provides that the “remedies, procedures and rights set forth in Title VI of the Civil Rights Act of 1964,” apply to actions brought pursuant to § 504 of the Act. Id.; see also 29 U.S.C. § 794a(a)(2). Prevailing plaintiffs under § 504, then, are entitled to the same damages as are awarded to successful plaintiffs in Title VI actions. Unfortunately, this does not greatly simplify the issue before this court. The view of the Supreme Court as to the type of damages that are recoverable under Title VI has been revealed only through a “badly fragmented decision.” Manecke, 762 F.2d at 922 n. 8 (referring to Guardians Ass’n v. Civil Service Comm’n., 463 U.S. 682, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983)). As the Eleventh Circuit noted in Ma-necke, “[although none of the various opinions [in Guardians] garnered majority support, a reading of them reveals that at least five Justices would not allow compensatory relief to a private plaintiff under Title VI absent proof of discriminatory intent.” Manecke, 762 F.2d at 922 n. 8 (citing Guardians, 463 U.S. at 3235, 103 S.Ct. at 3235 n. 27). At least one court has held that compensatory damages as used in the context of Title VI means something different from its ordinary meaning. Bradford v. Iron County C-4 School Dist., 36 F.E.P. Cases 1296, 1300 (E.D.Mo.1984). Compensatory damages is an expansive term which would normally include damages for humiliation and emotional distress. Walker v. Ford Motor Co., 684 F.2d 1355, 1364 n. 16 (11th Cir.1982). As used in the context of"
},
{
"docid": "2490676",
"title": "",
"text": "103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), in which a badly fragmented court held that absent intentional discrimination, there can be no private cause of action for damages under Title VI. Although the separate opinions filed in that case express a wide variety of views as to the relief available under Title VI, a majority of the justices did imply that some form of monetary relief might be available under Title VI for intentional discrimination. The parties in the present case make much of the question of the extent to which Guardians implicitly overruled Drayden. It is important to note that the monetary relief which had been awarded by the lower court in Guardians was in the limited form of back pay and back benefits, not general damages; thus, one could conclude that the justices who implied that some monetary relief might be available were, at most, approving the recovery of only back pay or similar awards. See Bradford v. Iron County C-4 School Dist., 37 Empl.Prac. Dec. (CCH) ¶ 35,404 (E.D.Mo.1984) (term “compensatory damages” as used in Guardians refers only to retrospective equitable damages akin to those awarded under Title VII). Discrimination cases commonly distinguish between awards for back pay and other types of monetary damages, characterizing back pay as an equitable, rather than legal, remedy. Because Dray-den prohibited all monetary remedies, Drayden cannot be said to have been overruled in its entirety, either implicitly by Guardians or, as that case applies to section 504 actions, by Darrone. The court concludes that the prohibition in Drayden against damages other than back pay in Title VI actions remains the law of this circuit and is therefore applicable to section 504 cases. Even were Drayden no longer authoritative on the question, other considerations compel the conclusion that damages for emotional distress are unavailable under section 504. The Supreme Court has indicated that section 504 analysis is to be balanced: “Any interpretation of § 504 must ... be responsive to two powerful but countervailing considerations — the need to give effect to the statutory objectives and the desire to keep § 504"
},
{
"docid": "5374190",
"title": "",
"text": "577 F.Supp. 1257, 1262 (D.N.J.1983); Patton v. Dumpson, 498 F.Supp. 933, 937-39 (S.D.N.Y.1980); Glanz v. Vernick, 750 F.Supp. 39, 42 (D.Mass.1990) (assuming, without deciding, that compensatory damages for pain, suffering and emotional distress were available in a § 504 action). District courts in the Eighth Circuit, however, have not given Miener such an expansive interpretation. See Martin v. Cardinal Glennon Mem. Hosp. for Children, 599 F.Supp. 284 (E.D.Mo.1984) (relying on Bradford v. Iron Co. C-4 School Dist., No. 82-303C(4), 1984 WL 1443 (E.D.Mo. June 13, 1984) (unpublished), another post-Miener ruling that held that § 504 does not permit monetary relief for mental anxiety, distress, humiliation, and embarrassment). Other lower courts, including one from this circuit, have made similar rulings. See Marshbum v. Postmaster Gen., 678 F.Supp. 1182, 1184 (D.Md.), aff'd mem. 861 F.2d 265 (4th Cir.1988); see also Doe v. Southeastern Univ, 732 F.Supp. 7, 9-10 (D.D.C.1990) (“To hold that compensatory and punitive damages are available [under § 504] would be to engage in judicial activism.”); Shuttleworth v. Broward County, 649 F.Supp. 35, 37-38 (S.D.Fla.1986); Flavin v. Connecticut Bd. of Educ., 553 F.Supp. 827, 833 (D.Conn.1982) (only “prospective equitable relief allowed” under § 504); Boxall v. Sequoia High School Dist., 464 F.Supp. 1104, 1112 (N.D.Cal.1979) (Title VI and § 504 “should probably be seen as creating a private supplement to government enforcement, not as providing a new entitlement to damages.”). We think the legislative-intent approach yields the answer that § 504 and Title VI were not meant to create new species of statutory torts, complete with a full array of monetary remedies. Our inquiry is confined to divining what the words of the statute were meant to impart. Of course, the failure of Congress to spell out the explicit parameters of allowable relief in Title VI and, by extension, § 504 requires recourse to material beyond the words of the statute itself. Complementary anti-discrimination legislation strikes us as an appropriate starting point. As Justice Marshall noted in his dissent in Guardian’s, Title VII (42 U.S.C. § 2000e et seq.) is a useful guidepost in the Title VI analysis. Guardian’s, 463"
},
{
"docid": "4010316",
"title": "",
"text": "S.Ct. at 3223 & n. 2 (opinion of White, J.), but that “at least five justices would not allow compensatory relief to a private plaintiff under Title VI absent proof of discriminatory intent.” Manecke v. School Bd. of Pinellas County, Fla., 762 F.2d 912, 922 n. 8 (11th Cir.1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 809, 88 L.Ed.2d 784 (1986). At the outset, we concede some difficulty in application of Guardians Association to the instant dispute, given the various opinions therein. In this regard, we note the comments of Justice Powell that the Court’s several “opinions [in Guardians Association] ... will further confuse rather than guide.” 463 U.S. at 608, 103 S.Ct. at 3235. And though Guardians Association has been described as “a badly fragmented decision,” see id., we nevertheless have looked to it for guidance. In announcing the judgment of the Guardians Association Court, Justice White concocted an opinion which only Justice Rehnquist joined. Noting that there had been no showing of intentional discrimination, Justice White “put aside” the question of damages in hypothetical circumstances involving intentional discrimination. 463 U.S. at 597, 103 S.Ct. at 3229. Justice White added, however, that “it may be that the victim of the intentional discrimination should be entitled to a compensatory award_” Id. (emphasis added). Justice Powell, joined by Chief Justice Burger, found no implied cause of action at all under Title VI. See id. at 608-11, 103 S.Ct. at 3235-37 (Powell, J., concurring in judgment). It follows logically that the Justices did not believe damages could be sought, where no cause of action could lie in the first place. Finally, Justice O’Con-nor also concurred in judgment, concluding that no relief of any kind was available without intentional discrimination. She therefore did not reach the issue of whether a private cause of action for damages would lie. See id. at 612 n. 1, 103 S.Ct. at 3238 n. 1 (O’Connor, J., concurring in judgment). In dissent, Justice Marshall took the position that compensatory relief is available to a private Title VI plaintiff without a showing of intent to discriminate. See id. at"
},
{
"docid": "23287868",
"title": "",
"text": ". Section 505(a)(1) of the amended Act, 29 U.S.C. § 794a(a)(2) (1985), provides: [t]he remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C. § 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title. . See generally Lloyd v. Regional Transp. Auth., 548 F.2d 1277, 1285-86 (7th Cir.1977), for a discussion of the similarities between Title VI and section 504 of the Rehabilitation Act. Cf. Alexander v. Choate, 469 U.S. 287, 293 n. 7, 105 S.Ct. 712, 716 n. 7, 83 L.Ed.2d 661 (1985) (\"too facile an assimilation of Title VI law to Sec. 504 must be resisted”). . We note that plaintiffs have not requested either front pay or back pay. . The Supreme Court has not decided \"the extent to which money damages are available under Sec. 504,” Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 630, 104 S.Ct. 1248, 1252, 79 L.Ed.2d 568 (1984), although in Darrone the Court did apply Title VI jurisprudence to a section 504 claim and authorize an award of back-pay. In Guardians Ass'n v. Civil Serv. Comm’n, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), at least five members of the Supreme Court concluded that compensatory relief probably is not available under Title VI, absent proof of discriminatory intent. Relying on Guardians, the Fifth Circuit has held that section 504 does not provide for damages in the absence of intentional discrimination. See Marvin H. v. Austin Indep. School Dist., 714 F.2d 1348, 1357 (5th Cir.1983). . Most reported cases have addressed the latter three types of barriers because, perhaps, as the Supreme Court observed, most discrimination against the handicapped is due to apathy, not animus. Alexander v. Choate, 469 U.S. at 296, 105 S.Ct. at 717. In addition, the discrimination resulting from disparate impact, or from surmountable or insurmountable barriers present novel legal issues not previously settled by traditional employment discrimination jurisprudence."
},
{
"docid": "4010315",
"title": "",
"text": "of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), we find it clear that Drayden constituted this circuit’s view on the matter of compensatory damages under Titles VI and IX prior to Guardians Association, a case to which we now turn. In Guardians Association, petitioners black and Hispanic police officers of the City of New York, brought a class action lawsuit against the Civil Service Commission alleging their layoffs constituted civil rights violations under, inter alia, Title VI. The district court awarded constructive seniority, with monetary and nonmonetary entitlements, and certain other relief. The court of appeals reversed on the issue of damages, holding that intentional discrimination — which had not been found by the trial court — was required for relief under Title VI. A fragmented Supreme Court affirmed the judgment of the court of appeals. A fair reading of the various opinions discloses that a majority of Justices agreed that discriminatory intent is not a prerequisite to relief under Title VI, see Guardians Association, 463 U.S. at 584 & n. 2, 103 S.Ct. at 3223 & n. 2 (opinion of White, J.), but that “at least five justices would not allow compensatory relief to a private plaintiff under Title VI absent proof of discriminatory intent.” Manecke v. School Bd. of Pinellas County, Fla., 762 F.2d 912, 922 n. 8 (11th Cir.1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 809, 88 L.Ed.2d 784 (1986). At the outset, we concede some difficulty in application of Guardians Association to the instant dispute, given the various opinions therein. In this regard, we note the comments of Justice Powell that the Court’s several “opinions [in Guardians Association] ... will further confuse rather than guide.” 463 U.S. at 608, 103 S.Ct. at 3235. And though Guardians Association has been described as “a badly fragmented decision,” see id., we nevertheless have looked to it for guidance. In announcing the judgment of the Guardians Association Court, Justice White concocted an opinion which only Justice Rehnquist joined. Noting that there had been no showing of intentional discrimination, Justice White “put aside” the question of damages in"
},
{
"docid": "2490675",
"title": "",
"text": "impression before this court. The starting point in this circuit for the analysis of remedies available to a section 504 plaintiff is Drayden v. Needville Independent School District, 642 F.2d 129 (5th Cir. Unit A April 1981), an employment discrimination case brought under Title VI. Discussing the relief available to the appellants, the court, without elaboration, stated that the right to maintain a private cause of action under Title VI “does not include the right to recover backpay or other losses.” Id. at 133. However, subsequently the United States Supreme Court specifically addressed the nature of the remedies available under section 504, holding that a plaintiff alleging intentional discrimination may bring an action for back pay. Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984). Thus, Drayden’s sweeping prohibition against all monetary relief in Title VI actions no longer applies. Also relevant to the issue of damages under section 504 is the 1983 Supreme Court case of Guardians Association v. Civil Service Commission of New York, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), in which a badly fragmented court held that absent intentional discrimination, there can be no private cause of action for damages under Title VI. Although the separate opinions filed in that case express a wide variety of views as to the relief available under Title VI, a majority of the justices did imply that some form of monetary relief might be available under Title VI for intentional discrimination. The parties in the present case make much of the question of the extent to which Guardians implicitly overruled Drayden. It is important to note that the monetary relief which had been awarded by the lower court in Guardians was in the limited form of back pay and back benefits, not general damages; thus, one could conclude that the justices who implied that some monetary relief might be available were, at most, approving the recovery of only back pay or similar awards. See Bradford v. Iron County C-4 School Dist., 37 Empl.Prac. Dec. (CCH) ¶ 35,404 (E.D.Mo.1984) (term “compensatory damages”"
},
{
"docid": "14950927",
"title": "",
"text": "the Rehabilitation Act have not allowed recovery of compensatory damages and have been limited to equitable remedies, see, e.g., Lengen v. Department of Transp., 903 F.2d 1464, 1468 (11th Cir.1990), recent Supreme Court case law, discussed below, appears to reverse this remedial limitation. See infra p. 792 (discussing Franklin v. Gwinnett County Pub. Schs., - U.S. -, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992)). Section 505(a)(2) of the Rehabilitation Act provides that the \"remedies, procedures and rights set forth in title VI of the Civil Rights Act of 1964\" apply to actions brought under § 504 of the Rehabilitation Act. 29 U.S.C. § 794a(a)(2). Successful plaintiffs under § 504 of the Rehabilitation Act are, therefore, entitled to the same damages as successful Title VI plaintiffs. Accordingly, in determining whether Kraft is entitled to compensatory damages, this Court must look to the available remedies under Title VI and § 504 of the Rehabilitation Act. The analysis of available remedies under Title VI must begin with the highly fragmented decision of Guardians Ass'n. v. Civil Serv. Comm'n., 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983). In Guardians, black and Hispanic police officers brought suit asserting discrimination under, inter alia, Title VI due to disproportionate layoffs resulting from allegedly discriminatory examinations. The district court, finding discriminatory intent need not be proved under Title VI, granted relief for the plaintiffs. The court of appeals for the Second Circuit reversed the decision as to the Title VI claim, concluding proof of discriminatory intent was necessary. Although the Supreme Court was unable to establish a majority opinion, reading the various opinions of the Court, it is clear that five members concluded discriminatory intent is not a prerequisite to a Title VI claim. Id. at 584 n. 2, 103 S.Ct. at 3223 n. 2. Additionally, among the several opinions \"at least five Justices would not allow compensatory relief to a private plaintiff under Title VI absent proof of discriminato ry intent.” Manecke v. School Bd., 762 F.2d 912, 921-22 n. 8 (11th Cir.1985) (emphasis in original) (citing Guardians, 463 U.S. at 607 n. 27, 103"
},
{
"docid": "3161695",
"title": "",
"text": "on the basis of race, color, or national origin in federally-assisted programs. Congress, in 1978, amended the Rehabilitation Act and, pursuant to § 505(a)(2), 29 U.S.C. § 794a(a)(2), made available the \"remedies, procedures, and rights” found in Title VI to anyone discriminated against in violation of § 504 of the Act. The district court understandably consulted circuit precedent on Title VI relief. See Drayden v. Needville Indep. School Dist., 642 F.2d 129, 133 (5th Cir.1981) (Title VI relief limited to cessation of discriminatory activity; back-pay or other losses not recoverable). Relying on Drayden, the district court concluded that damages similarly could not be recovered under § 504. Manecke, 553 F.Supp. at 790. After the district court dismissed the § 504 claim, however, this court decided Powell, 699 F.2d 1078. In that case we observed, citing Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir.1982), cert. denied, 460 U.S. 1012, 103 S.Ct. 1252, 75 L.Ed.2d 481 (1983), and Miener v. Missouri, 673 F.2d 969, 979 (8th Cir.), cert. denied, 459 U.S. 909, 916, 103 S.Ct. 215, 230, 74 L.Ed.2d 171, 182 (1982), that § 504 \"has been interpreted to provide a cause of action for compensatory damages.” Powell, 699 F.2d at 1082. We affirmed the district court’s refusal to award damages, though, because we were unable to discern any unlawful discrimination. Four months after this court decided Powell, the Supreme Court handed down Guardians Ass’n v. Civil Serv. Comm'n., 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), a badly fragmented decision which construed Title VI. Although none of the various opinions garnered majority support, a reading of them reveals that at least five Justices would not allow compensatory relief to a private plaintiff under Title VI absent proof of discriminatory intent. See id. 103 S.Ct. at 3235 n. 27. More recently, the Supreme Court, in. Consol. Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984), explicitly applied Title VI jurisprudence to a § 504 claim. The plaintiff in Darrone brought suit under § 504 for backpay. Mindful of the 1978 amendments to the Rehabilitation"
}
] |
657887 | U.S.C. § 1252. We review for substantial evidence the agency’s factual findings and review de novo legal determinations. Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir.2008). We deny the petition for review. Substantial evidence supports the agency’s determination that Alvarado-Davila did not establish past persecution. See Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009) (harm to others must be closely tied to petitioner); see also Gormley v. Ashcroft, 364 F.3d 1172, 1177-78 (9th Cir.2004) (mere economic disadvantage or discrimination does not amount to persecution). Substantial evidence also supports the agency’s determination that AlvaradoDavila does not have a well-founded fear of persecution on account of his family membership because his siblings, who are similarly situated, live unharmed in Nicaragua. See REDACTED To the extent the Alvarado-Davila contends the IJ failed to consider his fear of persecution on account of political opinion, independent of his social group claim, the contention is unexhausted. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004). Petitioner’s remaining challenges to the denial of his asylum claim are unavailing. Accordingly, his asylum claim fails. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | [
{
"docid": "22624284",
"title": "",
"text": "its own opinion dismissing the appeal. The Board concluded that Santos-Le-mus had not established a well-founded fear of future persecution on account of membership in a particular social group. As for Santos-Lemus’s claim that he was persecuted on account of his family membership, the Board reasoned that even if Santos-Lemus’s family were to be considered a particular social group, Santos-Le-mus “cannot establish a well founded fear based upon his membership in that group because his mother has remained unharmed in El Salvador since his departure.” With regard to Santos-Lemus’s claim that he was persecuted because he was a member of a social group as “a young man in El Salvador resisting gang violence unstoppable by the police,” the Board found this social group not cognizable because it has no “social visibility” and is not therefore a “particular social group” for asylum purposes. The Board also rejected Santos-Lemus’s claim that his resistance to gangs or his “anti-gang opinions” constituted political opinion, reasoning that expression of a fear of harm resulting from general conditions of violence and civil unrest does not substantiate a well-founded fear of persecution on account of political opinion. The Board concluded that because Santos-Le-mus had “not established persecution or a well-founded [fear] of persecution ‘on account of a qualifying ground,’ he ... failed to establish his eligibility for asylum” and withholding of removal. Finally, the Board agreed with the IJ that Santos-Lemus did not establish that he will more likely than not be tortured in El Salvador, observing that his mother, “who is similarly situated to” him, has remained unharmed in El Salvador. Santos-Lemus timely petitioned this court for review of the Board’s decision. II. We review the Board’s legal conclusions de novo. See Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.2004). We give Skidmore deference to the Board’s “interpretation of the governing statutes and regulations,” recognizing that, “ ‘while not controlling upon the courts by reason of their authority, [these interpretations] do constitute a body of experience.’ ” Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011, 1014(9th Cir.2006) (alteration in original) (quoting Skidmore v. Swift & Co.,"
}
] | [
{
"docid": "18237497",
"title": "",
"text": "as offensive.... ” Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004) (citation and internal quotation marks omitted). Our precedent generally involves some physical harm to the petitioner to support a claim of past persecution. See Nahrvani v. Gonzales, 399 F.3d 1148, 1153 (9th Cir.2005) (“Physical violence inflicted against an individual often meets the requirement of severity that characterizes persecution....”) (citations, alteration, and internal quotation marks omitted). As the BIA stated in its decision, Mendoza-Pablo offered no evidence of physical harm. In addition, Mendoza-Pablo’s claim of emotional harm was not substantiated by specific testimony, objective evidence or expert testimony. See Nahrvani, 399 F.3d at 1154 (observing that denial of asylum claim was warranted because petitioner failed to substantiate his claim); see also Ouk v. Gonzales, 464 F.3d 108, 111 (1st Cir.2006) (holding that petitioner failed to establish link between emotional harm and alleged persecution). Mendoza-Pablo’s description of his struggles in Mexico do not establish past persecution. See Gormley, 364 F.3d at 1178-80 (noting that economic disadvantage does not constitute persecution). Similarly, Mendoza-Pablo’s vague testimony describing his fear of future persecution was insufficient. See Lolong v. Gonzales, 484 F.3d 1173, 1179 (9th Cir.2007) (en banc) (rejecting a “general, undifferentiated claim” of future persecution). The cases cited by the majority are easily distinguished. Benyamin v. Holder, 579 F.3d 970 (9th Cir.2009) involved an infant girl who was subjected to female genital mutilation, a practice we have described as a permanent disfigurement of the female genitalia with “serious, potentially life-threatening complications.... ” Id. at 972 (citation omitted). Unlike Mendoza-Pablo, the infant in Benyamin was directly subjected to a physical injury with permanent effects, rising to the level of persecution. See id. The cases cited by the majority stand for the unremarkable proposition that age is a factor to be considered in determining whether persecution has occurred. See Hemandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir.2007); see also Liu v. Ashcroft, 380 F.3d 307, 314 (7th Cir.2004); Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir.2006); Abay v. Ashcroft, 368 F.3d 634, 640 (6th Cir.2004). These cases in no way undermine the administrative resolution"
},
{
"docid": "22433806",
"title": "",
"text": "We review factual findings, on the other hand, for substantial evidence. Halim v. Holder, 590 F.3d 971, 975 (9th Cir.2009). Under the substantial-evidence standard, “[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. We will uphold the agency’s determination “if it is supported by reasonable, substantial, and probative evidence in the record.” Id. (quoting Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.2006)). We review the BIA’s denial of a motion to reopen for abuse of discretion. Garcia v. Holder, 621 F.3d 906, 912 (9th Cir.2010). We cannot affirm the BIA or IJ on a ground upon which it did not rely. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.2010). In other words, we “must decide whether to grant or deny the petition for review based on the Board’s [or IJ’s] reasoning rather than our own independent analysis of the record.” Azanor v. Ashcroft, 364 F.3d 1013, 1021 (9th Cir. 2004). Ill The BIA and IJ correctly afforded Ali the presumption of a well-founded fear of persecution. But their finding that the Government had rebutted that presumption is not supported by substantial evidence because they failed to make an individualized determination of how the changed country conditions in Fiji impacted Ali’s specific harms and circumstances. In addition, the BIA abused its discretion when it denied Ali’s motion to reopen because it failed to analyze the effect of the 2006 coup on Ali’s presumption of a well-founded fear of persecution. A The petitioner bears the burden of establishing his eligibility for asylum. 8 C.F.R. § 1208.13(a). To satisfy this burden, an alien must show he is “unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, [his country of nationality] 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.” 8 U.S.C. § 1101(a)(42). An alien who has suffered past persecution is presumed to have a well-founded fear of persecution. 8 C.F.R. § 1208.13(b)(1). The Government"
},
{
"docid": "22243918",
"title": "",
"text": "his health. He also testified that the drugs he uses are not available in Mexico and provided corroborating evidence to support this claim. On November 20, 2001, the IJ found Boer-Sedano ineligible for asylum because he failed to establish past persecution on account of a protected basis. The IJ concluded that the sex acts that Boer-Sedano was forced to perform by the police officer were simply “a personal problem” he had with this officer. The IJ further concluded that Boer-Sedano had not established a well-founded fear of persecution because “he was not subject to systematic persecution which prevented him from living his chosen life style, ... particularly after he moved to Monterrey.” The IJ also denied Boer-Sedano’s withholding of removal and CAT claims. Boer-Sedano timely appealed to the BIA, which on August 4, 2003, affirmed the IJ without opinion. Boer-Sedano timely petitioned for review. STANDARD OF REVIEW We review the BIA’s decision on whether a petitioner established eligibility for asylum under the substantial evidence standard. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). “This standard limits reversals of BIA decisions to situations where the Petitioner presented evidence so compelling that no reasonable factfinder could fail to find that Petitioner has not established eligibility for asylum.” Ali v. Ashcroft, 394 F.3d 780, 784 (9th Cir.2005) (internal quotations and brackets omitted). Here, because the BIA affirmed without opinion, we review the IJ’s decision as the final agency determination. 8 C.F.R. § 1003.1(e)(4); see also Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). DISCUSSION I. Asylum Claim A. Boer-Sedano Established Past Persecution To qualify for asylum, Boer-Sedano must show that he is a refugee or one “who is unable or unwilling to return to ... [his 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[.]” See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b). The IJ rejected Boer-Sedano’s argument that he was persecuted on account of his membership in the particular social group of male homosexuals in Mexico because she found that this did not constitute"
},
{
"docid": "18237496",
"title": "",
"text": "Finally, the BIA affirmed the IJ’s ruling that there was insufficient evidence in the record to support a finding that Mendoza-Pablo had an objectively reasonable fear of future persecution. The persecution of Mendoza-Pablo’s parents was too remote to establish an objectively reasonable fear of future persecution, and Mendoza-Pablo’s claims regarding how he would be injured if he returned to Guatemala were entirely speculative. It is important to keep in mind that our review of the decision of the Board of Immigration Appeals (BIA) is extremely limited. In order for us to reach a different conclusion, the record must compel a different result. See INS v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Padash v. INS, 358 F.3d 1161, 1165 (9th Cir.2004). So long as there is substantial evidence in the record supporting the BIA’s decision, that decision must be upheld. See id. Such record evidence supports the BIA’s decision in this case. “Persecution is an extreme concept that does not include every sort of treatment our society regards as offensive.... ” Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004) (citation and internal quotation marks omitted). Our precedent generally involves some physical harm to the petitioner to support a claim of past persecution. See Nahrvani v. Gonzales, 399 F.3d 1148, 1153 (9th Cir.2005) (“Physical violence inflicted against an individual often meets the requirement of severity that characterizes persecution....”) (citations, alteration, and internal quotation marks omitted). As the BIA stated in its decision, Mendoza-Pablo offered no evidence of physical harm. In addition, Mendoza-Pablo’s claim of emotional harm was not substantiated by specific testimony, objective evidence or expert testimony. See Nahrvani, 399 F.3d at 1154 (observing that denial of asylum claim was warranted because petitioner failed to substantiate his claim); see also Ouk v. Gonzales, 464 F.3d 108, 111 (1st Cir.2006) (holding that petitioner failed to establish link between emotional harm and alleged persecution). Mendoza-Pablo’s description of his struggles in Mexico do not establish past persecution. See Gormley, 364 F.3d at 1178-80 (noting that economic disadvantage does not constitute persecution). Similarly, Mendoza-Pablo’s vague testimony describing"
},
{
"docid": "22908116",
"title": "",
"text": "result of their family membership, granted the petition, and remanded for further consideration of, among other things, whether the government was unable or unwilling to control the violence against the Thomases. II. STANDARD OF REVIEW We review the BIA’s “factual determinations, including its finding of whether an applicant has demonstrated a ‘well-founded fear of persecution,’ ... for substantial evidence.” Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.2000) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). We also review the BIA’s decision to withhold deportation for substantial evidence. Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir.1995). “The substantial evidence standard of review is highly deferential to the Board.” Pedro-Mateo, 224 F.3d at 1150 (quotations and citations omitted). “We review the BIA’s determination of purely legal questions regarding the Immigration and Nationality Act de novo.” Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003) (citations omitted). However, “[t]he BIA’s interpretation of immigration laws is entitled to deference.” Id. at 862. Because the BIA summarily affirmed the IJ’s decision, we review the IJ’s decision as the final agency determination. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). III. DISCUSSION A. Eligibility for Asylum and Withholding of Removal The Attorney General may grant asylum to an alien who is a refugee. 8 U.S.C. § 1158(b)(1). “A refugee is an alien who is unable to return to his home 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.’ ” Ding v. Ashcroft, 387 F.3d 1131, 1136 (9th Cir.2004) (quoting 8 U.S.C. § 1101(a)(42)(A)). To establish eligibility for withholding of removal, under 8 U.S.C. § 1231(b)(3)(A), a petitioner must establish a “clear probability,” Navas v. INS, 217 F.3d 646, 655 (9th Cir.2000), that the petitioner’s “life or freedom would be threatened” upon return because of “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). An applicant has established a “clear probability” of persecution, and “is entitled to withholding of removal ..."
},
{
"docid": "22175176",
"title": "",
"text": "denied withholding of removal and relief under the CAT for Ali and her sons. The IJ did grant Ali and her sons’ request for voluntary departure in lieu of removal, designating Somalia as the country of removal. On September 1, 2000, Ali timely appealed these denials to the BIA on behalf of herself and her two sons. The BIA affirmed the IJ without opinion on March 27, 2003. Ali then timely filed this petition for review. II. Standard of Review We review the BIA's decision on whether the petitioner has established eligibility for asylum under the substantial evidence standard. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). This standard limits reversals of BIA decisions to situations where the \"Petitioner presented evidence' so compelling that no reasonable factfinder could [fail to] find' that Petitioner has not established eligibility for asylum.\" Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). As the BIA affirmed without opinion under 8 C.F.R. § 1003.1(e)(a), we review the IJ's decision as the final agency determination. Lopez-Alvarado v. Ashcroft, 371 F.3d 1111, 1114 (9th Cir.2004). \"We accept the Petitioner['s] testimony as true when, as here, the IJ found [her] to be credible.\" Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004). III. Discussion A. The Asylum Claim To establish eligibility for asylum, the applicant must first show that she qualifies as a refugee. Immigration and Nationality Act (“INA”) § 208(b), 8 U.S.C. § 1158(b) (giving the Attorney General discretion to grant asylum to any alien deemed a “refugee”). A refugee is one “who is unable or unwilling to return to ... [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.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). We hold that Ali has met the statutory eligibility for asylum. 1. Ali Suffered Past Persecution on Account of Political Opinion and Membership in a Particular Social Group Although the USC militia was not the ruling"
},
{
"docid": "7599569",
"title": "",
"text": "to the BIA, which, in an order issued October 20, 2008, affirmed the IJ’s reasoning and decision, and dismissed the appeal. This petition for review followed. II. Discussion A. Standard of Review This court has appellate jurisdiction over petitions for judicial review from the BIA under 8 U.S.C. § 1252. “Review of legal rulings is de novo but is deferential as to findings of fact and the determination as to whether the facts support a claim of persecution.” Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir.2008). We review fact-based determinations under a “substantial evidence” standard, which requires that we must affirm provided that the BIA’s decision is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)); see also 8 U.S.C. § 1252(b)(4)(B). Unless the record compels a contrary conclusion, evidence in the record supporting a conclusion contrary to that reached by the BIA is not enough to upset the agency’s determination. See Sompotan v. Mukasey, 533 F.3d 63, 68 (1st Cir.2008) (quoting López de Hincapié v. Gonzales, 494 F.3d 213, 218 (1st Cir.2007)). In other words, we must uphold the BIA’s determination unless the record “points unerringly in the opposite direction.” Hincapié, 494 F.3d at 220 (quoting Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004)). “Usually, this court confines its review to the BIA’s order that is being challenged by the petitioner.” Lumataw v. Holder, 582 F.3d 78, 83 (1st Cir.2009) (internal quotation marks omitted). “However, when as here, the BIA adopts the decision of the IJ, and provides some analysis of its own, the Court reviews both decisions.” Id. B. Applicable Law “To establish eligibility for asylum, an alien must prove either past persecution, which gives rise to an inference of future persecution, or establish a well founded fear of future persecution on account of her race, religion, nationality, membership in a social group, or political opinion.” Lumataw, 582 F.3d at *83 (internal quotation marks omitted); see also"
},
{
"docid": "5181029",
"title": "",
"text": "identify its source, or any consequences he endured beyond the one warning which did not include a threat of harm. The IJ found Ladyha’s testimony generally credible. While she acknowledged possible mistreatment, the IJ concluded that Ladyha had not established a well-founded fear of persecution on any ground or a likelihood that he would be tortured if removed to Belarus, and the BIA agreed. Ladyha has not challenged the denial of his application for CAT relief, 8 C.F.R. § 1208.16(c)(2), or voluntary departure, id. at § 1229c(b)(1)(A). Therefore we review only the decision about his eligibility for asylum and withholding. An asylum applicant must prove that he cannot return to his country of origin “because of persecution or a well-founded fear of persecution on account of ... religion ... or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “Persecution is the infliction or threat of death, torture, or injury to one’s person or freedom, on account of race, religion, nationality, membership in a particular social group, or political opinion.” Davila-Mejia v. Mukasey, 531 F.3d 624, 628 (8th Cir.2008) (quotation omitted). An applicant may qualify for asylum by proof of either past persecution or a well founded fear or future persecution. 8 C.F.R. § 208.13(b). “We review the BIA’s decision as the final agency action, including the IJ’s findings and reasoning to the extent they were expressly adopted by the BIA.” Lovan v. Holder, 574 F.3d 990, 993 (8th Cir.2009)(quotation omitted). We review the record for substantial evidence and affirm unless the evidence was “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Gomez v. Gonzales, 425 F.3d 543, 545 (8th Cir.2005), citing I.N.S. v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Ladyha has not demonstrated that the record evidence compels reversal on the basis of past persecution. While Ladyha testified he was threatened at knifepoint, the “king of the city” comment by his assailants is accurately characterized as “exaggerated, non-specific, or lacking in immediacy.” Corado v. Ashcroft, 384 F.3d 945, 947 (8th Cir.2004). Ladyha was unharmed. See Quomsieh v. Gonzales, 479"
},
{
"docid": "22707528",
"title": "",
"text": "opinion, we review the IJ’s decision as the final agency determination”). Legal determinations are reviewed de novo. Sandoval-Lua v. Gonzales, 499 F.3d 1121, 1126-27 (9th Cir.2007). The substantial evidence standard governs adverse credibility findings and all other factual findings. See Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.2006); Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). “Under the substantial evidence standard, ‘administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Zehatye, 453 F.3d at 1185 (quoting 8 U.S.C. § 1252(b)(4)(B)). “[W]e must uphold the IJ’s determination if it is supported by reasonable, substantial, and probative evidence in the record.” Id. (citing INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). IV On appeal, Halim essentially raises three issues: (1) whether the IJ’s conclusion that Halim’s reported incidents of harassment do not constitute persecution is supported by substantial evidence; (2) whether the IJ’s conclusion that Halim does not have a well-founded fear of future persecution is supported by substantial evidence; and (3) whether Halim is entitled to relief or a remand on the basis of his disfavored group claim. A. Halim’s evidence, even if credited, does not compel a finding of past persecution. An applicant bears the burden of establishing that he or she is eligible for asylum. 8 C.F.R. § 208.13(a); see also Zhu v. Mukasey, 537 F.3d 1034, 1038 (9th Cir.2008). Although the term “persecution” is not defined by the Immigration and Nationality Act, “[o]ur caselaw characterizes persecution as an extreme concept, marked by the infliction of suffering or harm ... in a way regarded as offensive.” Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir.2004) (en banc) (citation and internal quotation marks omitted). In Wakkary v. Holder, 558 F.3d 1049 (9th Cir.2009), we noted that “[p]ersecution is an extreme concept that does not include every sort of treatment our society regards as offensive ... mere discrimination, by itself, is not the same as persecution.” Id. at 1059 (citations and internal quotation marks omitted). Here, even taking Halim at his word, he"
},
{
"docid": "22339796",
"title": "",
"text": "the gang, one or two were killed, others were hiding in Honduras, and some fled to the United States. Ramos was afraid that MS-13 members would kill him, but he never went to the police for help. Two of Ramos’ brothers, ages nineteen and twenty, remained in Puerto Cortes. The MS-13 did not bother the nineteen-year old, but started looking for the twenty-year old after Ramos fled. Ramos’ twelve-year old brother lives with his parents, but has not had problems with the gang because he is too young. A sixteen-year old sister also lives with Ramos’ parents. The IJ found Ramos credible, but, even after crediting his testimony as true, denied asylum, withholding of removal, and protection under the CAT. The IJ held that Ramos could not establish eligibility for asylum or withholding because he did not face persecution on account of his membership in a cognizable social group or any political opinion. Alternatively, the IJ held that Ramos did not suffer past persecution or have a well-founded fear of future persecution. The IJ further denied CAT relief because Ramos did not face a clear probably of torture in Honduras. The BIA affirmed in a summary disposition. Ramos timely petitions for review of the denial of asylum and withholding of removal, but not the denial of CAT relief. II. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). When, as here, the BIA summarily affirms the IJ’s decision, we review the IJ’s decision as the final agency action. 8 C.F.R. § 1003.1(e)(4)(ii); Zehatye v. Gonzales, 453 F.3d 1182, 1184 (9th Cir.2006) (citing Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004)). We review the IJ’s legal determinations de novo. See Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004). The IJ’s findings of fact “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we review the IJ’s findings of fact for substantial evidence. Halaim, 358 F.3d at 1131. Additionally, “[w]e accept [the petitioner’s] testimony as true when, as here, the IJ found [him] to be credible.” Id. (citing Salazar-Paucar v."
},
{
"docid": "22339797",
"title": "",
"text": "denied CAT relief because Ramos did not face a clear probably of torture in Honduras. The BIA affirmed in a summary disposition. Ramos timely petitions for review of the denial of asylum and withholding of removal, but not the denial of CAT relief. II. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). When, as here, the BIA summarily affirms the IJ’s decision, we review the IJ’s decision as the final agency action. 8 C.F.R. § 1003.1(e)(4)(ii); Zehatye v. Gonzales, 453 F.3d 1182, 1184 (9th Cir.2006) (citing Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004)). We review the IJ’s legal determinations de novo. See Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004). The IJ’s findings of fact “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we review the IJ’s findings of fact for substantial evidence. Halaim, 358 F.3d at 1131. Additionally, “[w]e accept [the petitioner’s] testimony as true when, as here, the IJ found [him] to be credible.” Id. (citing Salazar-Paucar v. INS, 281 F.3d 1069, 1073 (9th Cir.), amended by 290 F.3d 964 (9th Cir.2002)). III. Congress vested the Attorney General with the discretion to grant asylum to refugees. 8 U.S.C. § 1158(b)(1)(A). The INA defines “refugee,” in relevant part, as: any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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. 8 U.S.C. § 1101(a)(42)(A). While asylum is a discretionary form of relief, the Attorney General must grant withholding of removal if “the alien’s life or freedom would be threatened” in the country to which he would be removed because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). Thus, to be eligible for either form of relief, the persecution feared must be on account"
},
{
"docid": "22432569",
"title": "",
"text": "his appeal. Tapia Madrigal petitions for review. II. STANDARD OF REVIEW We review for substantial evidence the factual findings supporting the BIA’s decision that an. applicant has not established eligibility for asylum, see Yan Xia Zhu v. Mukasey, 537 F.3d 1034, 1038 (9th Cir.2008), withholding of removal, see Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir.2011), or relief under CAT, see Li Chen Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003). We review questions of law de novo. See Yan Xia Zhu, 537 F.3d at 1038. III. ASYLUM To establish asylum eligibility, an applicant must show that he is unable or unwilling to return to his country of nationality “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.” 8 U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. § 1158(b)(1)(A). “Either past persecution or a well-founded fear of future persecution provides eligibility for a discretionary grant of asylum.” Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.2010) (quoting Ratnam v. INS, 154 F.3d 990, 994 (9th Cir.1998)). Tapia Madrigal claims eligibility for asylum based on both past persecution and fear of future persecution. A. PAST PERSECUTION “An applicant alleging past persecution has the burden of establishing that (1) his treatment rises to the level of persecution; (2) the persecution was on account of one or more protected grounds; and (3) the persecution was committed by the, government, or by forces that the government was unable or unwilling to control.” Id Tapia Madrigal contends that (1) the kidnapping, beatings, death threats, inquiries regarding his whereabouts, drive-by shooting and threatening note rise to the level of persecution; (2) this persecution was. on account of an imputed political opinion and on account of his membership in the particular social group of former Mexican army soldiers who participated in anti-drug activity; and (3) the Mexican government is unable or unwilling to control Los Zetas. The BIA’s conclusion that Tapia Madrigal was not persecuted “on account of’ an imputed political opinion is supported by substantial evidence. Nothing in the record"
},
{
"docid": "22208924",
"title": "",
"text": "(9th Cir.2007), upholding a determination when it is “ ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole,’ ” Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). To reverse a finding “we must find that the evidence not only supports that conclusion, but compels it.” Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812. IV. DISCUSSION The Attorney General may, in his discretion, grant asylum to applicants determined to be refugees within the meaning of section 101(a)(42)(A) of the Immigration and Nationality Act. 8 U.S.C. § 1101(a)(42)(A); see id. § 1158(b)(1). An applicant qualifies as a refugee when the “applicant is unable or unwilling to return to his home country because of a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Navas v. INS, 217 F.3d 646, 654 (9th Cir.2000). An applicant may establish a “well-founded fear of future persecution” in two ways: proof of past persecution or a demonstration that the applicant has a subjectively genuine and objectively reasonable fear of future persecution. Fisher v. INS, 79 F.3d 955, 960 (9th Cir.1996) (en banc). To be eligible for asylum, an applicant must demonstrate a nexus between the alleged persecution and one of the five protected categories. See Pedro-Mateo v. INS, 224 F.3d 1147, 1150—51 (9th Cir.2000). A showing of past persecution gives rise to a rebuttable presumption that the applicant has a well-founded fear of future persecution. See Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir.2004). A. Credibility Determination We review credibility findings under a substantial evidence standard. Rivera v. Mukasey, 508 F.3d 1271, 1274 (9th Cir.2007). An adverse credibility determination must be based on “specific, cogent reasons” found in the record. Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir.2006) (internal quotation marks omitted). One of these reasons must go to the heart of the asylum claim. See Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004). “Minor inconsistencies in the record that"
},
{
"docid": "22058895",
"title": "",
"text": "Shoafera v. INS, 228 F.8d 1070, 1074 n. 2 (9th Cir.2000) (internal quotations omitted) (BIA denied asylum application of Ethiopian citizen based on her claim that she was raped on account of her Amharic ethnicity; court of appeals granted the petition and remanded to the BIA finding evidence compelled the conclusion that petitioner was persecuted based on her ethnicity); see also, Baballah v. Ashcroft, 335 F.3d 981, 991 n. 10 (9th Cir.2003), amended on other grounds, 2004 WL 964164 (9th Cir.2004) (BIA denied application for asylum and withholding of removal by Muslim Israeli and his family based on severe harassment, threats, violence and discrimination; court of appeals granted the petition and remanded to the BIA, finding evidence compelled the conclusion that petitioner established persecution based on ethnicity and religion). The Knezevics’ claim is based on their Serbian ethnicity. On June 28, 2002, the BIA, per curiam, summarily affirmed the IJ’s decision. The Knezevics argue that the IJ erred in denying their application for asylum and withholding of deportation. II ANALYSIS A. Standard of Review We generally review only the BIA’s decision, but where, as here, the BIA affirms the IJ’s decision without issuing an opinion, we review the IJ’s decision as the final agency determination. Falcon Carriche, 350 F.3d at 849. We will uphold the BIA’s denial of asylum if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Ruano, 301 F.3d at 1159(internal quotation marks omitted). B. Asylum and Withholding of Deportation To be eligible for asylum or withholding of deportation, an applicant must prove that he is a person who is unable or unwilling to return to his country of origin “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.” Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th Cir.2003); see also 8 U.S.C. § 1101(a)(42). Persecution encompasses the “infliction of suffering or harm upon those who differ in race, religion or political opinion in a way regarded as offensive.” Fisher v. INS, 79 F.3d 955, 961"
},
{
"docid": "7444353",
"title": "",
"text": "could not support an objectively reasonable fear of future persecution, and it denied Wanyama’s due process claim. Wanyama now petitions for review pursuant to 8 U.S.C. § 1252(b), arguing he is eligible for asylum under 8 U.S.C. § 1158 and renewing his due process claim. “We review the BIA’s decision, as it is the final agency decision; however, to the extent that the BIA adopted the findings or reasoning of the IJ, we also review the IJ’s decision as part of the final agency action.” Davila-Mejia v. Mukasey, 531 F.3d 624, 627 (8th Cir.2008). “We review the BIA’s denial of an application for asylum ... using the deferential substantial evidence standard.” Sow v. Mukasey, 546 F.3d 953, 956 (8th Cir.2008). Under the substantial evidence standard, we affirm “unless the evidence was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Osuji v. Holder, 657 F.3d 719, 720 (8th Cir.2011) (quoting Lady ha v. Holder, 588 F.3d 574, 577 (8th Cir.2009)). To qualify for asylum, an applicant must demonstrate that he or she is a “refugee.” 8 U.S.C. § 1158(b)(1)(A). Refugees are aliens that are unable or unwilling to return home “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.” 8 U.S.C. § 1101(a)(42)(A). Where, as here, an applicant attempts to establish a well-founded fear of future .persecution without having shown past persecution, “the applicant must show the fear is both subjectively genuine and objectively reasonable.” Karim v. Holder, 596 F.3d 893, 897 (8th Cir.2010) (quoting Uli v. Mukasey, 533 F.3d 950, 955 (8th Cir.2008)). To establish an objectively reasonable fear of future persecution, “an alien must present credible, direct, and specific evidence of facts that show a reasonable person in the alien’s position would fear persecution if returned to the alien’s native country.” Litvinov v. Holder, 605 F.3d 548, 553 (8th Cir.2010) (quoting Loulou v. Ashcroft, 354 F.3d 706, 709 (8th Cir.2003)). Wanyama first claims the BIA erred by finding no particularized threat of persecution based on the publication"
},
{
"docid": "22583008",
"title": "",
"text": "forced abortion as “part” of “proof ... of persecution.” J-S-, 24 I. & N. Dec. at 535. We have recognized, however, that he must show substantial evidence of further persecution in support of his claims. Nai Yuan Jiang, 611 F.3d at 1095. He’s claim of further persecution relies primarily on the economic deprivations that he has suffered. We have defined economic persecution as a “substantial economic disadvantage” that interferes with the applicant’s livelihood, and a reasonable factfinder would not be compelled to find that He has suffered such persecution. Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir.2004). He has not shown any evidence of the effect of the fine on him, apart from that he went into hiding to avoid paying it, and he was able to borrow a much larger sum to travel to the United States. See id. at 1178 (rejecting the petitioners’ claim because “they have presented no evidence that would compel a finding that their experiences rise to the level of persecution”). Even though He testified that he was forced into hiding between 1992 and 2004, he also testified and stated on his asylum application that he was able to continue working during that period. Thus, substantial evidence supports the BIA’s determination that He did not suffer persecution. See, e.g., Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.2003) (kindergarten teacher who was fired but was then able to find work in a factory was not subject to economic persecution). Finally, He has not established that he has a well-founded fear of future persecution that is independent of any claim of past persecution. See 8 U.S.C. § 1101(a)(42). B. No remand is necessary At oral argument, counsel for He asked us to grant the petition for review and remand the case to allow him to try to gather more evidence of resistance and persecution that he could use to establish a claim of asylum in light of J-S-. We decline to do so. We are without jurisdiction to consider this request. The Attorney General had decided J-S- almost a year before He filed his appellate"
},
{
"docid": "22243919",
"title": "",
"text": "standard limits reversals of BIA decisions to situations where the Petitioner presented evidence so compelling that no reasonable factfinder could fail to find that Petitioner has not established eligibility for asylum.” Ali v. Ashcroft, 394 F.3d 780, 784 (9th Cir.2005) (internal quotations and brackets omitted). Here, because the BIA affirmed without opinion, we review the IJ’s decision as the final agency determination. 8 C.F.R. § 1003.1(e)(4); see also Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). DISCUSSION I. Asylum Claim A. Boer-Sedano Established Past Persecution To qualify for asylum, Boer-Sedano must show that he is a refugee or one “who is unable or unwilling to return to ... [his 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[.]” See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b). The IJ rejected Boer-Sedano’s argument that he was persecuted on account of his membership in the particular social group of male homosexuals in Mexico because she found that this did not constitute a particular social group for asylum purposes. We recently held that “alien homosexuals” con stitute a particular social group. Karouni v. Gonzales, 399 F.3d 1163, 1172 (9th Cir. 2005). Therefore, the BIA erred in affirming the IJ’s conclusion that homosexual men in Mexico could not form the basis of a social group claim. Whether particular acts constitute persecution for asylum purposes is a legal question, which we review de novo. Hernandez-Montiel v. INS, 225 F.3d 1084, 1097 (9th Cir.2000). We have held that sexual assault, including forced oral sex, may constitute persecution. Id. Therefore, there can be no doubt that the nine sex acts that Boer-Sedano was forced to perform rise to the level of persecution. “[W]e have [also] consistently held that death threats alone can constitute persecution.” Navas v. INS, 217 F.3d 646, 658 (9th Cir.2000). The IJ’s minimization of the death threat Boer-Sedano received from the police officer may account for her failure to recognize that he suffered persecution. When counsel referred to the death threat the officer issued to Boer-Sedano during a"
},
{
"docid": "22908117",
"title": "",
"text": "we review the IJ’s decision as the final agency determination. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). III. DISCUSSION A. Eligibility for Asylum and Withholding of Removal The Attorney General may grant asylum to an alien who is a refugee. 8 U.S.C. § 1158(b)(1). “A refugee is an alien who is unable to return to his home 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.’ ” Ding v. Ashcroft, 387 F.3d 1131, 1136 (9th Cir.2004) (quoting 8 U.S.C. § 1101(a)(42)(A)). To establish eligibility for withholding of removal, under 8 U.S.C. § 1231(b)(3)(A), a petitioner must establish a “clear probability,” Navas v. INS, 217 F.3d 646, 655 (9th Cir.2000), that the petitioner’s “life or freedom would be threatened” upon return because of “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). An applicant has established a “clear probability” of persecution, and “is entitled to withholding of removal ... if it is more likely than not that he or she will be persecuted based on one of the protected grounds if returned to the country of removal.” Wang v. Ashcroft, 341 F.3d 1015, 1022 (9th Cir.2003). Once the petitioner satisfies the standard, withholding of removal is mandatory. 8 U.S.C. § 1231(b)(3)(A). As in the context of asylum, “[a] determination of past persecution such that a petitioner’s life or freedom was threatened creates a presumption of entitlement to withholding of deportation.” Rios v. Ashcroft, 287 F.3d 895, 903 (9th Cir.2002) (citations omitted). B. Exhaustion As a preliminary matter, we reject the government’s contention that the Thomases’ “family as a particular social group” claim was unexhausted at the agency level, depriving us of jurisdiction. Although the government correctly argues that a “court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right,” 8 U.S.C. § 1252(d)(1), its view that the Thomases’ failed to exhaust their family as social group claim is legally"
},
{
"docid": "22411347",
"title": "",
"text": "April 1, 1997, and we therefore have jurisdiction over his petition for review pursuant to 8 U.S.C. § 1252(a)(1). See Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004). STANDARD OF REVIEW Where the BIA affirms an IJ’s order without opinion, we review the IJ’s order as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir. 2004). Factual findings underlying the IJ’s order are reviewed for substantial evidence. See Gormley, 364 F.3d at 1176. Under this standard, the IJ’s eligibility determinations must be upheld if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). To reverse the IJ’s determinations, the evidence Khup presented at his hearing must have been such that a reasonable fact-finder would have been compelled to conclude that he was eligible for relief. See id. We review de novo claims of due process violations in the removal proceedings. Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 869 (9th Cir.2003) (en banc). ANALYSIS I. Asylum Congress has given the Attorney General discretion to grant asylum to refugees. See 8 U.S.C. § 1158(b). To be eligible for asylum, Khup needed to show that he was unable or unwilling to return to Burma “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.” Melkonian v. Ashcroft, 820 F.3d 1061, 1064 (9th Cir.2003) (citing 8 U.S.C. § 1101(a)(42)(A)). A. Past Persecution The IJ found that Khup had not suffered from past persecution, because he had only one serious run-in with the Burmese military (the forced porterage). The IJ concluded that although this “certainly constitutes harassment and discrimination against [Khup] by virtue of his ethnicity and his religious background,” it did not rise to the level of persecution. Khup argues that the IJ ignored the anguish he suffered when his fellow preacher was arrested, tortured, and killed and when he was forced to flee the country. Absent a statutory definition, the Ninth Circuit"
},
{
"docid": "22208923",
"title": "",
"text": "in the United States as well” (emphasis added). The IJ failed to cite to any Chinese law Li had violated. In addition to rejecting the possibility that Li was persecuted on account of his political opinion, the IJ also found Li had failed to demonstrate that he was persecuted on account of religion or any other protected ground. The IJ therefore exercised his “discretion to not grant asylum to [Li].” The IJ also rejected Li’s application for withholding of removal and protection under CAT. The BIA affirmed without opinion. Li timely petitions for review. III. STANDARD OF REVIEW When the BIA adopts the reasoning of the IJ, we review the decision of the IJ. See Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir.1995) (“Because the BIA did not independently review [the applicant’s] case and instead adopted the IJ’s opinion, we review the decision of the IJ.”); 8 C.F.R. § 1003.1(e)(4). We review the IJ’s determination that an applicant has not established asylum eligibility for substantial evidence, see Tang v. Gonzales, 489 F.3d 987, 989-90 (9th Cir.2007), upholding a determination when it is “ ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole,’ ” Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). To reverse a finding “we must find that the evidence not only supports that conclusion, but compels it.” Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812. IV. DISCUSSION The Attorney General may, in his discretion, grant asylum to applicants determined to be refugees within the meaning of section 101(a)(42)(A) of the Immigration and Nationality Act. 8 U.S.C. § 1101(a)(42)(A); see id. § 1158(b)(1). An applicant qualifies as a refugee when the “applicant is unable or unwilling to return to his home country because of a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Navas v. INS, 217 F.3d 646, 654 (9th Cir.2000). An applicant may establish a “well-founded fear of future persecution” in"
}
] |
776583 | the case to Chapter 7, for cause, including, but not limited to, the reasons listed in 11 U.S.C. § 1307(c)(1)-(8). The filing of a Chapter 13 petition for relief in bad faith is cause for dismissal of the case. In re Perez, 43 B.R. 530 (Bankr.S.D.Tex.1984); In re Chin, 31 B.R. 314 (Bankr.S.D.N.Y.1983). See, Buffkin v. Puckett (In re Puckett), 745 F.2d 51 (4th Cir.1984). In resolving whether the refiling of a Chapter 13 case, after a previous case has been dismissed, constitutes bad faith and cause for dismissal of the refiled case, courts should be mindful of 11 U.S.C. § 109(f)(1) and (2), but remember that there is no statutory prohibition against repetitive filings. See, REDACTED In Johnson v. Vanguard Holding Corp., (In re Johnson) 708 F.2d 865 (2d Cir.1983), with regard to the filing of a dismissed Chapter 13 case, the court stated: The Bankruptcy Judge should determine whether Johnson had a bona fide change in circumstances that justified both her default on her first plan and her second filing. Id. at 868. The Johnson requirement that a debtor show a change in circumstances so as to justify the default in the first case and the subsequent refiling has been followed in In re Bolton, 12 B.C.D. 416, 43 B.R. 48, 11 C.B.C.2d 456 (Bankr.E.D.N.Y.1984); In re Chin, 31 B.R. 314 (Bankr.S.D.N.Y.1983). See, also, In re Nimmo, 39 B.R. 5 (Bankr.D.N.Mex.1984); In re Bystrek, 17 | [
{
"docid": "19325048",
"title": "",
"text": "a Chapter 13 bankruptcy plan. Id. at 197-200; see also In re Goeb, 675 F.2d 1386, 1389-91 (9th Cir.1982). The Goeb court held that a good faith determination requires a bankruptcy court to “inquire whether the debtor has misrepresented facts in his plan, unfairly manipulated the Bankruptcy Code, or otherwise proposed his Chapter 13 plan in an inequitable manner.” 675 F.2d at 1390. It is an absence of these determinations that requires us to remand this case for findings of fact. The Bankruptcy Judge should determine whether Johnson had a bona fide change in circumstances that justified both her default on her first plan and her second filing. The judge is of course not precluded from considering all events that have occurred during the pendency of this litigation. Lest this decision be interpreted as a judicial endorsement of successive filings, however, we point out that Congress did provide a statutory mechanism for modifying a confirmed Chapter 13 bankruptcy plan in just such circumstances as Johnson allegedly suffered. Section 1329 of Title 11 U.S.C. permits reducing the amount of payments, extending the time for payments, or even changing the amount due a particular creditor, on proper petition and showing. As the legislative history makes clear, if problems such as a long-term layoff or family illness and medical bills make execution of a confirmed plan impracticable, the Act even permits a temporary moratorium on payments. H.R.Rep. No. 595, 95th Cong., 2d Sess. 125, reprinted in 1978 U.S.Code Cong. & Ad.News, 5787, 5963, 6086. There is no doubt that Johnson’s counsel ignored this statutory modification process; instead, after default on the first repayment plan, he did not oppose its dismissal, and then refiled close on the heels of the foreclosure proceeding. We do not read § 1329, however, as necessarily foreclosing second filings, although in a change of circumstances such as alleged here it is obviously the more appropriate procedure. Further, we are unwilling that Johnson be penalized for any neglect of counsel in failing to appear in opposition to Vanguard’s motion to dismiss the first plan, and to argue for modification of"
}
] | [
{
"docid": "12612787",
"title": "",
"text": "of her creditors’ claims, including Equity. The Court finds that the Debtor’s Chapter 13 plans have not been filed in good faith. The Debtor has been less than candid and her credibility has been convincingly impeached. The appropriate action to be taken at this stage is the dismissal of the bankruptcy case under § 1307(c)(5). Next, the Court will address whether the Debtor should be barred from refiling and whether the dismissal of the case should be with prejudice. Pursuant to 11 U.S.C. § 349(a), the Court has the discretion to dismiss the case with prejudice. Section 349(a) provides: Unless the court, for cause, orders otherwise, the dismissal of a case under this title does not bar the discharge, in a later case under this title, of debts that were dischargeable in the case dismissed; nor does the dismissal of a case under this title prejudice the debtor with regard to the filing of a subsequent petition under this title, except as provided in section 109(g) of this title. 11 U.S.C. § 349(a). As Judge DeGunther aptly noted in In re Lerch, 85 B.R. 491, 494 n. 2 (Bankr.N.D.Ill.1988), aff'd, 94 B.R. 998 (N.D.Ill.1989), 11 U.S.C. § 109(g)(1) only touches the tip of the “abuseberg.” In the decision affirming Lerch, Judge Roszkowski found that § 349(a) clearly affords a bankruptcy court the discretionary power to determine whether there is “cause” for a dismissal with prejudice. 94 B.R. at 1002. Further, the bankruptcy-court can use its own factors to determine what may constitute “cause.” Id. Lerch permits the Court, in its discretion, to prohibit the filing of any bankruptcy case beyond the 180 day limit of § 109(g). See also In re Dilley, 125 B.R. 189, 197-98 (Bankr.N.D.Ohio 1991); Shearson Lehman Hutton Mortgage Corp. v. Hundley (In re Hundley), 103 B.R. 768, 771 (Bankr.E.D.Va.1989). The Ninth Circuit has held that bad faith is “cause” for dismissal of a Chapter 13 case with prejudice under § 349(a) and § 1307(c). In re Leavitt, 171 F.3d 1219, 1224 (9th Cir.1999). A dismissal with prejudice bars further bankruptcy proceedings and is a complete adjudication"
},
{
"docid": "13836399",
"title": "",
"text": "when a debtor who, under a confirmed Chapter 13 plan, has been unable or unwilling to meet a plan payment obligation to the trustee or a mortgagee, suffers a dismissal and shortly thereafter refiles — then dismissal of the subsequent case is proper if the debtor failed to come forward in the prior case and move for relief from the obligations under the prior plan. The theory here is that if debtor suffered a detrimental change of circumstances during the first case which created an inability to make plan payments, it is debtor’s burden to move for relief or modification pursuant to § 1329, or for voluntary dismissal, rather than simply breach the plan obligation and put the Trustee or creditors to the delay and expense of moving for dismissal, and thereafter endure the added expense of bringing yet another motion for relief or dismissal in the newly filed case. As the Court in In re Bolton, 43 B.R. 48, 50 (Bankr.E.D.N.Y.1984), said, Under the doctrine enunciated in Johnson, the court holds that a debtor who files a subsequent petition after a prior petition is dismissed must not only demonstrate a “change in circumstances” but must also show good cause why he ignored applicable statutory provisions in failing to move for relief from the obligations under the prior plan in the prior proceeding. FILING MERELY TO PREVENT FORECLOSURE IS BAD FAITH, AND ONLY IN EXTRAORDINARY CIRCUMSTANCES SHOULD DEBTORS BE PERMITTED TO OBTAIN THE BENEFITS OF A SECOND AUTOMATIC STAY TO PREVENT FORECLOSURE “Filing a bankruptcy petition to prevent foreclosure if undertaken pursuant to a legitimate effort at reorganization is not reprehensible and is in accord with the aim of the Bankruptcy Code.” In re Chi-sum, 68 B.R. 471, 473 (9th Cir.BAP 1986). However, filing solely for the purpose of stopping or delaying a foreclosure, without the ability or intention to reorganize, is an abuse and therefore is not the proper basis for the filing of a bankruptcy proceeding, i.e., the filing lacks good faith. Cinema Service Corp. v. Edbee Corp., 774 F.2d 584 (3d Cir.1985). Acting as an appellate court"
},
{
"docid": "13706256",
"title": "",
"text": "of staying the foreclosure sale and without any intention of effectuating a plan for the payment of creditors. In documenting his findings, the Bankruptcy Judge specifically referred to a similar ploy previously used by Gaudet’s husband and to the patent inadequacy of Gaudet’s plan and her failure to follow through on it. Those factors are adequate to support the finding of bad faith. Consequently, the issue is whether bad faith provides a sufficient basis for denying a debtor’s motion to dismiss under § 1307(b) and/or granting a creditor’s motion to convert under § 1307(c). III. Dismissal Under § 1307(b) A debtor’s right to obtain dismissal of a Chapter 13 case is governed by 11 U.S.C. § 1307(b). That subsection provides: (b) On request of the debtor at any time, if the case has not been converted under ... [11 U.S.C. §§ 706, 1112, or 1208], the court shall dismiss a case under this chapter [Chapter 13]. Any waiver of the right to dismiss under this subsection is unenforceable. 11 U.S.C. § 1307(b) (1988) (emphasis added). Gaudet contends that use of the word “shall” makes dismissal mandatory and precludes the Bankruptcy Court from denying dismissal on “bad faith” grounds. That contention reflects the view expressed by a number of courts. E.g., In re Gillion, 36 B.R. 901, 905 (E.D.Ark.1983); In re Merritt, 39 B.R. 462, 465 (Bankr.E.D.Pa.1984); see In re Nash, 765 F.2d 1410, 1413 (9th Cir.1985). On the other hand, there is also a line of authority relied upon by the Bankruptcy Judge in this case to the effect that the Court has inherent power to deny dismissal of a case filed in bad faith in order to prevent misuse of the Bankruptcy Court and its process. E.g., In re Zarowitz, 36 B.R. 906, 908 (Bankr.S.D.N.Y.1984); see also In re Jacobs, 43 B.R. 971, 974-75 (Bankr.E.D.N.Y.1984). While the Bankruptcy Court unquestionably has authority to prevent and punish abuses of its process, it does not necessarily follow that such authority includes the prerogative to prevent voluntary dismissal pursuant to § 1307(b). As already noted, use of the word “shall” suggests that"
},
{
"docid": "14061139",
"title": "",
"text": "Of course, the determination of nondischargeability of the debt owed to the FDIC will be res judicata as to any attempt to discharge the same debt in a subsequent Chapter 7 case. Pope, III v. Housler (Matter of Housler), 41 B.R. 455 (W.D.Pa.1984). The determination under Section 523 may not, however, be res judicata as to the same debt treated under a Chapter 13 plan, In re Nickerson, 40 B.R. 693 (Bankr.N.D.Tex.1984), because the scope of the Chapter 13 discharge is much broader than that of the Chapter 7 discharge. 11 U.S.C. §§ 523(a), 727, 1328. The Bankruptcy Code invites eligible individuals to discharge under Chapter 13 many debts that would be nondischargeable in Chapter 7. Nelson v. Easley (In re Easley), 72 B.R. 948, 951 (Bankr.M.D.Tenn. 1987); see also, Commonwealth of Pennsylvania Dept. of Public Welfare v. Johnson-Allen (In re Johnson-Allen), 69 B.R. 461 (Bankr.E.D.Pa.1987). If Congress intended to render debtors ineligible for Chapter 13 relief or ineligible to confirm a plan where claims are or might be nondis-chargeable in a Chapter 7 case, then Congress would have specially established such ineligibility in the Bankruptcy Code. Easley, supra at 951. Aside from the simultaneous filings, movant contends the Debtors filed in bad faith because the purpose of the Chapter 13 filing is to delay payment of those non-dischargeable debts that survived the previous Chapter 7 case. If the Debtors choose to refile the Chapter 13 case after the Chapter 7 case is closed, this contention alone will be insufficient for a finding of a lack of good faith in filing. The debtor cannot be faulted for taking advantage or making use of the available statutory provisions. In re Makarchuk, 76 B.R. 919 (Bankr.N.D.N.Y.1987) (citing Matter of Lambert, 10 B.R. 223, 226 (Bankr.E.D.N.Y. 1981); In re McMonagle, 30 B.R. 899, 904 (Bankr.S.D.1983). Title 11 U.S.C. § 1307(c) is the only statutory basis by which a creditor may seek dismissal of a Chapter 13 case. The Section authorizes dismissal “for cause.” While nothing in the Bankruptcy Code requires a showing of good faith by a debtor as a condition precedent to"
},
{
"docid": "20916676",
"title": "",
"text": "His increased salary made it possible for the first time in the bankruptcy proceedings to propose such a cure. Such a bona fide change in circumstances is precisely what the bankruptcy judge should examine to determine whether successive filings are proper. See In re Johnson, 708 F.2d 865, 868 (2d Cir.1983). The fact that Metz’s plan provides for no payment to unsecured creditors is not sufficient to conclude that the plan was submitted in bad faith. See, e.g., Flygare v. Boulden, 709 F.2d 1344, 1348 (10th Cir.1983) (no per se minimum payment requirement); In re Gregory, 705 F.2d 1118, 1121 (9th Cir.1983) (noting in dictum that zero-payment plan to unsecured creditors may be proposed in good faith); Barnes v. Whelan, 689 F.2d 193, 198 (D.C.Cir.1982) (chapter 13 requires no minimum repayment as a prerequisite to confirmation); In re Greer, 60 B.R. 547, 554 (Bankrtcy.C.D.Cal.1986) (zero-payments to unsecured creditors is not evidence of bad faith per se). But see In re Lattimore, 69 B.R. 622, 625 (Bkrtcy.E.D.Tenn.1987) (“a plan proposing zero payment for unsecured claims is an abuse of the purpose and spirit of Chapter 13”); In re Heywood, 39 B.R. 910, 911 (Bkrtcy.W.D.N.Y.1984) (chapter 13 plan listing only secured debts remaining after chapter 7 discharge with no provisions for payments to discharged unsecured creditors is not submitted in good faith). Congress directed in 11 U.S.C. § 1325(a)(4) that the amount to be paid on unsecured claims in a chapter 13 plan need be only as much as the unsecured creditors would have received under chapter 7. See Goeb, 675 F.2d at 1389 (if a minimum payment to unsecured creditors is required, it should be mandated by Congress and not the courts). The law requires that all of a debtor’s projected disposable income be applied to make payments under a chapter 13 plan. 11 U.S.C. § 1325(b)(1)(B) (1984 Supp.); see also Lewis, 63 B.R. at 93 n. 2 (section 1325(b)(1)(B) overrules prior cases holding that chapter 13 plans are filed in bad faith when debtor proposes “zero payments”). Metz satisfies the requirement of section 1325(b)(1)(B) in that all of his disposal"
},
{
"docid": "18566005",
"title": "",
"text": "under Chapter 7 is “unfair manipulation of the Bankruptcy Code”); Snow v. Jones (In re Jones), 41 B.R. 263, 266-67 (Bankr.C.D.Cal.1984) (“filing six bankruptcy petitions for the sole purpose of delaying the secured creditors constitutes a clear abuse of the bankruptcy process”). A change in the debtor’s circumstances would be one possible element of a totality-of-the-circumstances analysis. In Metz's case his salary increase was a change in circumstances. Downey contends that these changed circumstances should have been raised in the first Chapter 13 case and not have been used as grounds for bringing a second Chapter 13 case. This would mean an inflexible rule, rather than the case-by-case analysis prescribed by Goeb. The Goeb approach is illustrated by Johnson v. Vanguard Holding Corp. (In re Johnson), 708 F.2d 865 (2d Cir.1983) where the Second Circuit reversed and remanded, directing that “the Bankruptcy Judge should determine whether [the debt- or] had a bona fide change in circumstances that justified both her default on her first plan and her second filing.” Id. at 868. Here, the Bankruptcy Judge applied the proper test for determining the debt- or’s good faith in proposing his second Chapter 13 plan. The Bankruptcy Judge inquired into the totality of the circumstances relevant to the bankruptcy. The court ruled that the debtor’s multiple filings were justified by the change in circumstances. Because Metz’s earnings had increased, he could now propose an acceptable payment schedule and interest rate to pay the arrearages on his home loan. The court also determined that the debtor had shown good faith by keeping his house payments current during both Chapter 13 cases. The only circumstance negating good faith was the filing of the three bankruptcy cases within six months. The multiple filings alone were not sufficient to counter the other evidence of the debtor’s good faith. As we are persuaded that the Bankruptcy Judge applied the proper standard for determining good faith, his finding of good faith may only be overturned if clearly erroneous. Fed.R.Civ.P. Rule 52(a); Crocker National Bank v. American Mariner Industries, Inc., (In re American Mariner Industries, Inc.), 734 F.2d"
},
{
"docid": "18509824",
"title": "",
"text": "at 113. Cf. In re Culbreth, 87 B.R. 225 (Bankr.M.D.Ga.1988) (finding Code § 1127(b) “irrelevant”, court confirms Chapter 12 plan filed nine months subsequent to substantial consummation of Debtor’s Chapter 11 plan and entry of final decree therein). Indeed, the Court notes that, but for the unsecured claims of Gross and Rosenthal arising out of purported personal loans for capital improvements, the balance of the unsecured debt listed in the petition in the instant Chapter 11 appears to have been incurred subsequent to the substantial consummation of the first Chapter 11 case. Freddie Mac Exhibits R15, 32. Moreover, as Freddie Mac itself notes, “the mere successive filing alone may not be itself grounds for dismissal.” Post-Trial Memorandum On Behalf Of Federal Home Loan Mortgage Corporation In Support Of Motion To Dismiss at p. 14 (Dec. 29, 1988). See In re McDermott, 78 B.R. 646, 651 (Bankr.N.D.N.Y.1985). There is no per se rule against successive filings and a bona fide change in circumstances may justify a debtor’s multiple filings. See Downey Savings And Loan Association (In re Metz), 820 F.2d 1495, 1498 (9th Cir.1987) (citing, in Chapter 13 context, Johnson v. Vanguard Holding Corp. (In re Johnson), 708 F.2d 865, 868 (2d Cir.1983)). Thus, a doubling of its debt-load and an inability to make the resultant payments due to Yorkshire Manor’s unforeseen levels of tenant vacancy sparked by a drop in interest rates, encouraging home buyers, and the closing of a nearby company, which had provided a tenant source, could presumably account for the requisite change in the Debtor’s circumstances sanctioning the current filing. However, an inquiry into the propriety of successive filings for purposes of dismissal invariably encompasses the question of good faith since it examines whether or not there was a pattern or strategy behind the filings to frustrate statutory requirements and abuse the bankruptcy process. See In re McDermott, supra, 78 B.R. at 651; Mortgage Mart, Inc. v. Rechnitzer (In re Chisum), 847 F.2d 597, 600 (9th Cir.1988) (citing In re Metz, supra, 820 F.2d at 1497). While there is a legal distinction between good faith in filing"
},
{
"docid": "18566004",
"title": "",
"text": "least some portion of his debts ...” Slade, 15 B.R. at 912; Estus, 695 F.2d at 314 n. 6. Chapter 20 cases, by circumventing the need to pay unsecured debts, pose a direct threat to the rationale for having Chapter 13. In Downey’s view, this potential for abuse should give rise to a rule of bad faith per se in Chapter 20 cases. While Chapter 20 cases are clearly undesirable, Downey’s approach to Chapter 20’s runs contrary to the totality-of-the-circumstances test of Goeb. 675 F.2d at 1389-90. Because each Chapter 13 plan should be tailored to the specific needs and abilities of the individual debtor, a case-by-case analysis of the good faith underlying the plan is logical and appropriate. As recent bankruptcy court opinions in this circuit have emphasized, potentials for abuse can be stemmed by case-by-case inquiries as to whether debtors are engaging in improper manipulation of the Bankruptcy Code. E.g., In re Brock, 47 B.R. 167, 170 (Bankr.S.D.Cal.1985) (Chapter 20 case brought for sole purpose of discharging embezzlement debt found to be nondischargeable under Chapter 7 is “unfair manipulation of the Bankruptcy Code”); Snow v. Jones (In re Jones), 41 B.R. 263, 266-67 (Bankr.C.D.Cal.1984) (“filing six bankruptcy petitions for the sole purpose of delaying the secured creditors constitutes a clear abuse of the bankruptcy process”). A change in the debtor’s circumstances would be one possible element of a totality-of-the-circumstances analysis. In Metz's case his salary increase was a change in circumstances. Downey contends that these changed circumstances should have been raised in the first Chapter 13 case and not have been used as grounds for bringing a second Chapter 13 case. This would mean an inflexible rule, rather than the case-by-case analysis prescribed by Goeb. The Goeb approach is illustrated by Johnson v. Vanguard Holding Corp. (In re Johnson), 708 F.2d 865 (2d Cir.1983) where the Second Circuit reversed and remanded, directing that “the Bankruptcy Judge should determine whether [the debt- or] had a bona fide change in circumstances that justified both her default on her first plan and her second filing.” Id. at 868. Here, the Bankruptcy"
},
{
"docid": "18509825",
"title": "",
"text": "re Metz), 820 F.2d 1495, 1498 (9th Cir.1987) (citing, in Chapter 13 context, Johnson v. Vanguard Holding Corp. (In re Johnson), 708 F.2d 865, 868 (2d Cir.1983)). Thus, a doubling of its debt-load and an inability to make the resultant payments due to Yorkshire Manor’s unforeseen levels of tenant vacancy sparked by a drop in interest rates, encouraging home buyers, and the closing of a nearby company, which had provided a tenant source, could presumably account for the requisite change in the Debtor’s circumstances sanctioning the current filing. However, an inquiry into the propriety of successive filings for purposes of dismissal invariably encompasses the question of good faith since it examines whether or not there was a pattern or strategy behind the filings to frustrate statutory requirements and abuse the bankruptcy process. See In re McDermott, supra, 78 B.R. at 651; Mortgage Mart, Inc. v. Rechnitzer (In re Chisum), 847 F.2d 597, 600 (9th Cir.1988) (citing In re Metz, supra, 820 F.2d at 1497). While there is a legal distinction between good faith in filing a petition and good faith in proposing a plan under Code § 1129(a)(3), (In re Madison Hotel Associates, 749 F.2d 410, 424-425 (7th Cir.1984)); In re Stolrow’s Inc., 84 B.R. 167, 171 (Bankr. 9th Cir.1988), In re McStay, 82 B.R. 763, 768 (Bankr.E.D.Pa.1988), it is well settled that the bad faith filing of a Chapter 11 case is cause for dismissal under Code § 1112(b) that could justify sanctions. See In re Copy Crafters Quickprint, Inc., 92 B.R. 973, 985 (Bankr.N.D.N.Y.1988) (citing cases); In re HBA East, Inc., 87 B.R. 248, 258-259 (Bankr.E.D.N.Y.1988) (citing cases); Mauna Lani Resort, Inc. v. Endrex Investments, Inc. (In re Endrex Investments, Inc.), 84 B.R. 207 (Bankr.D.Colo.1988). As an important “policing tool” of Chapter 11, the good faith requirement — from filing through confirmation — is the doctrine that arms the bankruptcy courts of equity in preserving the reorganization process for its intended recipients. See In re HBA East, Inc., supra, 87 B.R. at 258. See also In re Schlangen, 91 B.R. 834, 837 (Bankr.N.D.Ill.1988); In re Clinton Centrifuge, Inc.,"
},
{
"docid": "4624257",
"title": "",
"text": "precisely what the bankruptcy judge should examine to determine whether successive filings are proper. See In re Johnson, 708 F.2d 865, 868 (2d Cir.1983). Id. Therefore, the court found the plan to have been proposed in good faith. In contrast to the debtor in Metz, the debtors in this case have not kept their mortgage payments current, having defaulted repeatedly since their chapter 7 discharge. Moreover, the debtors have not come forward with any bona fide change in circumstances to justify their successive filings of chapter 13 petitions, the previous two of which were dismissed for failure to make plan payments. Compare In re Chisum, 847 F.2d 597, 600 (9th Cir.1988) (after noting that “ ‘[a] debtor’s history of filings and dismissals is relevant in determining whether a plan has been proposed in good faith,’ ” (quoting In re Nash, 765 F.2d 1410, 1415 (9th Cir.1985)) court holds that bona fide change in circumstance justified the debtor’s multiple filings); Metz II, supra, 820 F.2d at 1497 (no per se rule against successive filings; however, “successive filings may be examined together and the result achieved by such filings reviewed against the statutory requirements”). Finally, the only creditor dealt with by the plan is the bank, whose in personam claim has been effectively extinguished by the chapter 7 discharge. Compare In re Beauty, 42 B.R. 655, 657 (E.D.La.1984) (court finds a lack of good faith under section 1325(a)(3) where plan filed less than a month after the chapter 7 discharge and where plan dealt only with secured claims). These factors considered together justify dismissal on the basis of section 1325(a)(3). See In re Smith, supra, 848 F.2d at 818 (“ ‘totality of circumstances’ test forces the bankruptcy court to examine ‘whether or not under the circumstances of the case there has been abuse of the provisions, purpose, or spirit of [the Chapter] in the proposal.’ ”) (quoting In re Rimgale, 669 F.2d 426, 431 (7th Cir.1982)); cf. In re Clark, 86 B.R. 593, 17 B.C.D. 1323, 1325 (Bankr.E.D.Ark.1988) (“the lengthy history of multiple bankruptcy filings on the eve of foreclosure sales, the"
},
{
"docid": "13290537",
"title": "",
"text": "speak of the “case,” only of the “plan”), forestalling a threatened foreclosure on her home. The plan was confirmed, but the debtor failed to make the payments and the plan was dismissed on March 1, 1982. Acting through the same attorney, she filed a second plan on May 5, 1982. The mortgagee moved for dismissal or conversion. The debtor offered testimony that her circumstances had changed, but Bankruptcy Judge Párente refused to hear it. He held that the second filing was an abuse of the system, without regard to any alleged change in circumstances, and granted the mortgagee’s motion. The Court of Appeals reversed, holding that “the Bankruptcy Judge should determine whether Johnson had a bona fide change in circumstances.” Id. at 868. Lower court authority in the First and Third Circuits seems generally, but not entirely, consistent with Johnson. In re Roderick, 20 B.R. 485 (Bkrtcy.D.R.I.1982), seems clearly in accord. The debtors filed a Chapter 13 on the day of a scheduled foreclosure. It was later converted to Chapter 7, and the debtors received a discharge. Thereafter, less than one hour before a newly scheduled foreclosure sale, the debtors filed a second Chapter 13 petition. Bankruptcy Judge Votolato dismissed the petition as not filed in good faith. The Court specifically refused to hold that repeat filing was bad faith per se. In this case, however, the Court said that “the evidence is clear that the Debtors filed neither of their Chapter 13 petitions with the intention of making meaningful payments to unsecured creditors as contemplated under Chapter 13.” Id. at 486. Also possibly consistent with Johnson is In re Conway, (Latimer & Buck Mortgage Co. v. Conway), 5 B.R. 251 (Bkrtcy.E.D.Pa.1980). The Court there held that filing of two previous Chapter 13 petitions is not alone just cause for dismissal of a third. Somewhat further afield is In re Bystrek, 17 B.R. 894 (Bkrtcy.E.D.Pa.1982), where the Court held without qualification that relief from the prior stay was res judicata in a new proceeding. But Bystrek may be consistent with Johnson on its facts. In Bystrek, the debtor filed a"
},
{
"docid": "18549963",
"title": "",
"text": "utilize the Bankruptcy Code to bad faith filings to abuse it and creditors. In the context of a serial or successive filing, a bona fide change in circumstances may justify finding that a successive filing was proper. Metz, 820 F.2d at 1498; Johnson v. Vanguard Holding Corp. (In re Johnson), 708 F.2d 865, 868 (2d Cir.1983); Mortgage Mart, Inc. v. Rechnitzer (In re Chisum), 847 F.2d 597, 600 (9th Cir.), cert. denied, 488 U.S. 892, 109 S.Ct. 228, 102 L.Ed.2d 218 (1988); Earl, 140 B.R. at 738; McKissie, 103 B.R. at 192. “ ‘[C]hanged circumstances’ required to justify a successive filing must be positive changes, i.e., debtor’s objective, financial circumstances and ability to perform the plan proposed must have improved between dismissal of the prior case and commencement of the new ease.” In re Huerta, 137 B.R. 356, 368 (Bankr.C.D.Cal. 1992) (collecting cases). It is, however, a misuse of the bankruptcy process to file one case, then, failing to achieve the intended goals, to file a second case. In re Jackson, 91 B.R. 473, 474 (Bankr.N.D.Ill.1988). As Jackson trenchantly noted, “good faith is not synonymous with honesty, and bad faith is not synonymous with dishonesty.” Id. at 475. “Filing a bankruptcy petition to prevent foreclosure if undertaken pursuant to a legitimate effort at reorganization is not reprehensible and is in accord with the aim of the Bankruptcy Code.” Chisum, 847 F.2d at 598-99 (citation omitted). However, when a ease has been filed only for the purpose of inhibiting or forestalling a foreclosure action on the debtor’s assets without the intention of financial rehabilitation, the case should be dismissed as having been filed in bad faith. See McKissie, 103 B.R. at 192; Earl, 140 B.R. at 739-40; see also Dami, 172 B.R. at 10 (“Where the purpose of the bankruptcy filing is to defeat state court litigation without a reorganization purpose, bad faith exists.”); In re Eatman, 182 B.R. 386, 392 (Bankr.S.D.N.Y.1995) (Serial filings can be evidence of bad faith, as are petitions filed to forestall creditors.). In this matter, the Court will take into consideration the record not only in"
},
{
"docid": "22031352",
"title": "",
"text": "is that chapter 13 is completely voluntary, and on both constitutional and policy grounds, no one should be compelled to work for her creditors. H.R.Rep. No. 595, 95th Cong., 1st Sess. 120 (1977) U.S.Code Cong. & Admin.News 1978, pp. 5787, 6080-81; see In re Tornheim, 181 B.R. 161, 169 n. 7 (Bankr.S.D.N.Y.1995), appeal dismissed, No. 95 Civ. 8474, 1996 WL 79333 (S.D.N.Y., Feb. 23, 1996). While many courts recognize a chapter 13 debtor’s absolute right to dismiss her case under any circumstances, others have held that the court, faced with the debtor’s motion to dismiss, may nevertheless convert the case where evidence of the debtor’s improper conduct or fraud exists. See In re Harper-Elder, 184 B.R. 403, 404-05 (Bankr.D.D.C.1995) (collecting cases); In re Howard, 179 B.R. 7, 9-10 (Bankr.D.N.H.1995) (same); In re Rebeor, 89 B.R. 314, 322 (Bankr.N.D.N.Y.1988) (same). Those that follow the absolute approach rely on the mandatory language of section 1307(b). See, e.g., In re Gillion, 36 B.R. 901, 906 (E.D.Ark.1983) (comparing mandatory language in 11 U.S.C. § 1307(b) with the permissive language in section 1307(c) ); In re Eddis, 37 B.R. 217, 218 (E.D.Pa.1984); In re Harper-Elder, 184 B.R. at 405; In re Howard, 179 B.R. at 9; In re Rebeor, 89 B.R. at 322; In re Hearn, 18 B.R. at 606-07; cf. In re Davenport, 175 B.R. 355, 358 (Bankr.E.D.Cal.1994) (construing 11 U.S.C. § 1208(b)). The contrary view avoids the apparent command of section 1307(b), interpreting section 1307(c) — and the debt- or’s bad faith — as an implicit limitation on the absolute right to dismiss so as to prevent the debtor from improperly manipulating the bankruptcy process. See, e.g., Molitor v. Eidson (In re Molitor), 76 F.3d 218, 220 (8th Cir.1996); In re McCraney, 172 B.R. 868, 869 (N.D.Ohio 1993); Gaudet v. Kirshenbaum Inv. Co. (In re Gaudet), 132 B.R. 670, 675-76 (D.R.I.1991); In re Howard, 179 B.R. at 9; In re Vieweg, 80 B.R. 838, 841 (Bankr.E.D.Mich.1987); In re Zarowitz, 36 B.R. 906, 908 (Bankr.S.D.N.Y.1984) (dicta); cf. In re Jacobs, 43 B.R. 971, 975-76 (Bankr.E.D.N.Y.1984) (once court commences inquiry into debtor’s bad faith and"
},
{
"docid": "18560166",
"title": "",
"text": "convert or dismiss a Chapter 11 case for cause is authorized under 11 U.S.C. § 1112(b). In determining what constitutes cause within the meaning of this section, the court may consider nine statutorily enumerated factors, including: (1) continuing loss or diminution of of the estate and absence of a reasonable likelihood of rehabilitation. A number of cases dealing with motions to convert or dismiss under 11 U.S.C. § 1112(b) have imposed as an additional ingredient of a Chapter 11 petition that it be filed in good faith, notwithstanding that good faith is not expressly stated as a factor to be considered for purposes of determining cause for conversion or dismis sal. E.g. In re Winshall Settlor’s Trust, 758 F.2d 1136, 1137 (6th Cir.1985); Furness v. Lilienfield (In re Lilienfield), 35 B.R. 1006 (D.Md.1983); In re Chesmid Park Corporation, 45 B.R. 153 (Bankr.E.D.Va.1984); In re Levinsky, 23 B.R. 210, 9 B.C.D. 791 (Bankr.E.D.N.Y.1982); In re 299 Jack-Hemp Associates, 20 B.R. 412 (Bankr.S.D.N.Y.1982); Paccar Financial Corp. v. Pappas (In re Pappas), 17 B.R. 662 (Bankr.D.Mass.1982); In re Eden Associates, 13 B.R. 578, 17 B.C.D. 1190 (Bankr.S.D.N.Y.1981); First Interstate Bank v. Weathersfield Farms, Inc. (In re Weathersfield Farms, Inc.), 14 B.R. 574 (Bankr.D.Vt.1981) aff'd. 15 B.R. 282 (D.Vt.1981); In re Nancant, Inc., 8 B.R. 1005, 7 B.C.D. 410 (Bankr.D.Mass.1981). This point was expressed recently by the Sixth Circuit Court of Appeals as follows: Factors relevant in examining whether a Chapter 11 petition has been filed in good faith include whether the debtor had any assets, whether the debtor had an ongoing business to reorganize, and whether there was a reasonable probability of a plan being proposed and confirmed. Id. [In re Dolton Lodge, Trust No. 35118, 22 B.R. 918 (Bankr.N.D.Ill.1982) ] at 923; see In re Eden Associates, 13 B.R. 578, 585 (Bankr.S.D.N.Y.1981) (“The debtor, with no assets, no bona fide creditors and no business, cannot effectively rehabilitate its enterprise.... ”); see also In re Tinkoff 141 F.2d 731 (7th Cir.1944) (mortgage foreclosure proceedings in state court were valid and equity of redemption expired; debtor had no interest in property for which it"
},
{
"docid": "14061140",
"title": "",
"text": "then Congress would have specially established such ineligibility in the Bankruptcy Code. Easley, supra at 951. Aside from the simultaneous filings, movant contends the Debtors filed in bad faith because the purpose of the Chapter 13 filing is to delay payment of those non-dischargeable debts that survived the previous Chapter 7 case. If the Debtors choose to refile the Chapter 13 case after the Chapter 7 case is closed, this contention alone will be insufficient for a finding of a lack of good faith in filing. The debtor cannot be faulted for taking advantage or making use of the available statutory provisions. In re Makarchuk, 76 B.R. 919 (Bankr.N.D.N.Y.1987) (citing Matter of Lambert, 10 B.R. 223, 226 (Bankr.E.D.N.Y. 1981); In re McMonagle, 30 B.R. 899, 904 (Bankr.S.D.1983). Title 11 U.S.C. § 1307(c) is the only statutory basis by which a creditor may seek dismissal of a Chapter 13 case. The Section authorizes dismissal “for cause.” While nothing in the Bankruptcy Code requires a showing of good faith by a debtor as a condition precedent to the debtor’s right to seek and obtain relief under any of the operating chapters of the Bankruptcy Code, it is now well established that the lack of good faith is “cause” for dismissal pursuant to § 1307. In the Matter of Mountcastle, 68 B.R. 305 (Bankr.M.D.Fla. 1986). The test for the lack of good faith in filing a Chapter 13 petition is (1) a lack of any bona fide unsecured creditors whose claims the Debtor seeks to adjust; and, (2) the absence of a genuine need and ability to perform under the Plan. Mountcastle, supra, at 307. This is to be distinguished from the good faith requirement in proposing a Chapter 13 plan. See Fidelity and Casualty Company of New York v. Warren (In re Warren), 89 B.R. 87 (Bankr. 9th Cir.1988); Kitchens v. Georgia Railroad Bank and Trust Co. (In re Kitchens), 702 F.2d 885 (11th Cir.1983) (per curiam). In accordance with the foregoing, it is hereby ORDERED, ADJUDGED AND DECREED the Motion to Dismiss filed by the FDIC be, and the same is"
},
{
"docid": "13290536",
"title": "",
"text": "of Villanueva, it would appear that the answer would have to be “no.” The debtor could not rely on his equity in the prior proceeding because the issue (together with the equity) simply was not available at the time. On accepted res judicata principles, it would seem that the debtor should be able to make an issue of equity, and the creditor should not be able to rely on the prior ruling. Bankruptcy Authority Treating the matter as a problem of res judicata, let me turn now to the authorities on multiple filing of bankruptcy cases. As will be evident, the cases rarely deal with the matter as a res judicata problem (but cf. In re Bystrek, 17 B.R. 894 (Bkrtcy.E.D. Pa.1982)). I think the cases are nonetheless largely consistent with a res judicata approach. Perhaps the most useful discussion comes from the Second Circuit, deciding In re Johnson (Johnson v. Vanguard Holding Corp.), 708 F.2d 865 (1983). On December 7, 1981, the debtor filed a Chapter 13 plan (sic — the Court does not speak of the “case,” only of the “plan”), forestalling a threatened foreclosure on her home. The plan was confirmed, but the debtor failed to make the payments and the plan was dismissed on March 1, 1982. Acting through the same attorney, she filed a second plan on May 5, 1982. The mortgagee moved for dismissal or conversion. The debtor offered testimony that her circumstances had changed, but Bankruptcy Judge Párente refused to hear it. He held that the second filing was an abuse of the system, without regard to any alleged change in circumstances, and granted the mortgagee’s motion. The Court of Appeals reversed, holding that “the Bankruptcy Judge should determine whether Johnson had a bona fide change in circumstances.” Id. at 868. Lower court authority in the First and Third Circuits seems generally, but not entirely, consistent with Johnson. In re Roderick, 20 B.R. 485 (Bkrtcy.D.R.I.1982), seems clearly in accord. The debtors filed a Chapter 13 on the day of a scheduled foreclosure. It was later converted to Chapter 7, and the debtors received"
},
{
"docid": "12343704",
"title": "",
"text": "requiring that, in such circumstances, “facts appear in the record that clearly warrant a finding of bad faith.” The liberal policy of Chapter 13, affording a clean start even to a debtor with a tainted past, likewise requires a clear justification for denying confirmation of a plan to which no creditor has objected. We emphasized in Public Finance Corp. v. Freeman that the good-faith inquiry under § 1325(a)(3) requires a careful examination of the totality of the circumstances surrounding the debtor’s Chapter 13 filing. As the Second Circuit has stated in a similar context, without further fact-finding by the bankruptcy court we cannot “tell whether [Chaffin] and [his] counsel are playing games or filing a bona fide plan that must be confirmed if it meets all six requirements of 11 U.S.C. § 1325.” For these reasons, we modify our prior opinion, REVERSE the district court, and REMAND the case to the district court with directions to remand it to the bankruptcy court for further proceedings consistent with this opinion and the remainder of our previous opinion. . Matter of Chaffin, 816 F.2d 1070 (5th Cir.1987). . Flygare v. Boulden, 709 F.2d 1344, 1347 (10th Cir.1983); In re Estus, 695 F.2d 311, 317 (8th Cir.1982); Deans v. O'Donnell, 692 F.2d 968, 972 (4th Cir.1982). . 11 U.S.C. § 1325(b)(1)(B) (1987 Supp.). . See In re Easley, 72 B.R. 948, 955 (Bkrtcy.M.D. Tenn.1986); In re Red, 60 B.R. 113 (Bkrtcy.E.D. Term. 1986). . See, e.g., Memphis Bank & Trust Co. v. Whitman, 692 F.2d 427, 432 (6th Cir.1982); In re Chase, 43 B.R. 739, 743 (D.Md.1984); Margraf v. Oliver, 28 B.R. 420 (S.D.Ohio 1983); In re Troyer, 24 B.R. 727 (N.D.Ohio 1982); see also In re Kazzaz, 62 B.R. 308, 313 (Bkrptcy.E.D.Va.1986). . See, e.g., In re Bowles, 48 B.R. 502, 505 (Bkrptcy.E.D.Va.1985); In re Harris, 62 B.R. 391, 393 n. 1 (Bkrtcy.E.D.Mich.1986). . 779 F.2d 1068 (5th Cir.1986). .Id. at 1074. . 712 F.2d 219, 221 (5th Cir.1983). . In re Johnson, 708 F.2d 865, 868-69 (2d Cir.1983)."
},
{
"docid": "13706257",
"title": "",
"text": "Gaudet contends that use of the word “shall” makes dismissal mandatory and precludes the Bankruptcy Court from denying dismissal on “bad faith” grounds. That contention reflects the view expressed by a number of courts. E.g., In re Gillion, 36 B.R. 901, 905 (E.D.Ark.1983); In re Merritt, 39 B.R. 462, 465 (Bankr.E.D.Pa.1984); see In re Nash, 765 F.2d 1410, 1413 (9th Cir.1985). On the other hand, there is also a line of authority relied upon by the Bankruptcy Judge in this case to the effect that the Court has inherent power to deny dismissal of a case filed in bad faith in order to prevent misuse of the Bankruptcy Court and its process. E.g., In re Zarowitz, 36 B.R. 906, 908 (Bankr.S.D.N.Y.1984); see also In re Jacobs, 43 B.R. 971, 974-75 (Bankr.E.D.N.Y.1984). While the Bankruptcy Court unquestionably has authority to prevent and punish abuses of its process, it does not necessarily follow that such authority includes the prerogative to prevent voluntary dismissal pursuant to § 1307(b). As already noted, use of the word “shall” suggests that the Court is required to dismiss a Chapter 13 case upon request of the debtor. In the view of some courts, that suggestion is reinforced by the contrasting language of § 1307(c) which provides that the court “may\" convert a Chapter 13 case to a Chapter 7 case. In re Benediktsson, 34 B.R. 349, 350 (Bankr.W.D.Wash.1983); In re Rebeor, 89 B.R. 314, 322 (Bankr.N.D.N.Y.1988). Other courts have rejected the notion of a “bad faith” exception to the mandate of § 1307(b). See, e.g., In re Sanders, 100 B.R. 338, 340 (Bankr.S.D.Ohio 1989). A literal reading of § 1307(b) is also consistent with Chapter 13’s purpose of providing debtors with a voluntary procedure for resolving their financial difficulties. Thus, the Report of the House Judiciary Committee, at the time the Bankruptcy Act was adopted, states: As under current law, chapter 13 is completely voluntary. This Committee firmly rejected the idea of mandatory or involuntary chapter XIII in the 90th Congress. The thirteenth amendment prohibits involuntary servitude_ On policy grounds, it would be unwise to allow creditors"
},
{
"docid": "23600516",
"title": "",
"text": "respect to the property is approximately $8 million. UNB has failed to show that the property is less than this amount. To the contrary, the only credible evidence offered at trial indicates that it is worth considerably more than $8.75 million. A.D. Johnson, of President’s Development Corp., expressed an intention to make a bona fide offer of $10 million for the property. In addition, Franklin Bolling, who has been retained by Debtor to sell the property, stated that the property can be sold for approximately $8.75 million within ninety (90) days. (B) Dismissal of Involuntary Petition UNB argues that the present involuntary petition should be dismissed pursuant to 11 U.S.C. § 707(a) because it was filed in bad faith. According to UNB, the petitioning creditors were “induced” to file in light of representations by Sky that they would not receive payment unless they filed a bankruptcy petition to prevent UNB from obtaining the Deed. UNB alleges that Sky’s intention was to deprive UNB of its rights and remedies under the Assumption Agreement agreed to and executed in Bedford Springs Hotel, Inc.. Good faith is an implicit jurisdictional requirement for the bringing of a Chapter 7 case. See In re Khan, 35 B.R. 718 (Bankr.W.D.Ky.1984). A showing of bad faith can result in dismissal under 11 U.S.C. § 707(a). See In re Setzer, 47 B.R. 340 (Bankr.E.D.N.Y.1985). “Good faith” is not defined in the Code. It has, however, been held to- require a showing of honest intention. See, e.g., Johnson v. Vanguard Holding Corp., 708 F.2d 865 (2nd Cir.1983). Such a determination can be made only on an ad hoc basis, see In re Chase, 28 B.R. 814 (Bankr. D.Md.1983), and depends on whether any abuses of the provisions, purpose, or spirit of bankruptcy law have occurred. See In re Vlahakis, 11 B.R. 751 (Bankr.M.D.Ga. 1981). Once the question of good faith has been put in issue, the party bringing the bankruptcy petition has the burden of proving that the petition was brought in good faith. See In re Holi-Penn, Inc., 535 F.2d 841 (3rd Cir.1976). The involuntary petition in this"
},
{
"docid": "18549962",
"title": "",
"text": "re Metz), 820 F.2d 1495, 1497 (9th Cir.1987) (While successive filings are not necessarily in bad faith per se, “successive filings may be examined together and the result achieved by such filings reviewed against the statutory requirements.”); Nash v. Kester (In re Nash), 765 F.2d 1410, 1414-15 (9th Cir.1985) (debtors may file successive Chapter 13 plans as long as each new plan is proposed in good faith); Neufeld v. Freeman, 794 F.2d 149, 153 (4th Cir.1986) (successive filings can be evidence of bad faith); In re Earl, 140 B.R. 728, 736 (Bankr.N.D.Ind.1992) (same); In re Dami, 172 B.R. 6, 10 (Bankr. E.D.Pa.1994) (a debtor’s history of filings and dismissals is probative of bad faith); McKissie, 103 B.R. at 191 (the filing of a second or serial case is not per se bad faith). Unfortunately, there is no bright line test or clear point of demarcation beyond which, after a certain period of time or number of failed attempts at reorganization, further serial or sequential filings by debtors cross over from good faith attempts to properly utilize the Bankruptcy Code to bad faith filings to abuse it and creditors. In the context of a serial or successive filing, a bona fide change in circumstances may justify finding that a successive filing was proper. Metz, 820 F.2d at 1498; Johnson v. Vanguard Holding Corp. (In re Johnson), 708 F.2d 865, 868 (2d Cir.1983); Mortgage Mart, Inc. v. Rechnitzer (In re Chisum), 847 F.2d 597, 600 (9th Cir.), cert. denied, 488 U.S. 892, 109 S.Ct. 228, 102 L.Ed.2d 218 (1988); Earl, 140 B.R. at 738; McKissie, 103 B.R. at 192. “ ‘[C]hanged circumstances’ required to justify a successive filing must be positive changes, i.e., debtor’s objective, financial circumstances and ability to perform the plan proposed must have improved between dismissal of the prior case and commencement of the new ease.” In re Huerta, 137 B.R. 356, 368 (Bankr.C.D.Cal. 1992) (collecting cases). It is, however, a misuse of the bankruptcy process to file one case, then, failing to achieve the intended goals, to file a second case. In re Jackson, 91 B.R. 473, 474"
}
] |
879339 | activities that are “an integral and indispensable part of [an employee’s] principal activities,” are not “preliminary,” but are also “principal activities,” and are compensable even if they occur before the beginning of an employee’s shift. See Steiner v. Mitchell, 350 U.S. 247, 253, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956). Kellar testified that she began her day (after unlocking doors and making coffee for employees) reviewing work schedules and gathering and distributing fabric and materials to her subordinates’ workstations. Such activities are surely “integral and indispensable” to the work that Kellar performed in her capacity as a sewing manager, such as supplying sewers with their sewing products, tracking supplies, and making sure that work was completed on schedule. See REDACTED Work activities that Kellar performed afterward would be covered by the “continuous workday rule,” which provides that the Portal-to-Portal Act does not apply “to the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday.” 29 C.F.R. § 790.6(a); IBP, 546 U.S. at 29,126 S.Ct. 514. The district court reached a different conclusion because it credited Mamie Spice’s affidavit to the effect that Spice and Kellar spent their pre-shift time socializing instead of working. The court acknowledged that Kellar’s deposition testimony directly contradicted Spice’s affidavit, but it did not | [
{
"docid": "22181592",
"title": "",
"text": "the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday, the provisions of [§ 4] have no application.” 29 CFR § 790.6(a) (2005). Simi larly, consistent with our prior decisions interpreting the FLSA, the Department of Labor has adopted the continuous workday rule, which means that the “workday” is generally defined as “the period between the commencement and completion on the same workday of \"an employee’s principal activity or activities.” § 790.6(b). These regulations have remained in effect since 1947, see 12 Fed. Reg. 7658'(1947), and no party disputes the validity of the continuous workday rule. In 1955, eight years after the enactment of the.Portal-to-Portal Act and the promulgation of these interpretive regulations, we were confronted with the question whether workers in a battery plant had a statutory right to compensation for the “time incident to changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employers to provide ....” Steiner v. Mitchell, 850 U. S. 247, 248 (1956). After distinguishing “changing clothes and showering under normal conditions” and stressing the important health and safety risks associated with the production of batteries, id., at 249, the Court endorsed the Court of Appeals’ conclusion that these activities were compensable under the FLSA. In reaching this result, we specifically agreed with the Court of Appeals that “the term ‘principal activity or activities’ in Section 4 [of the Portal-to-Portal Act] embraces all activities which are an ‘integral and indispensable part of the principal activities,’ and that the activities in question fall within this category.” Id., at 252-253. Thus, under Steiner, activities, such as the donning and doffing of specialized protective gear, that are “performed either before or after the regular work shift, on or"
}
] | [
{
"docid": "7842262",
"title": "",
"text": "testimony. Kellar worked for Summit for eight years. It is understandable that she would have arrived late on some occasions during her eight-year tenure. When Kellar was confronted with the possibility that she might have arrived later on some occasions, she corrected herself. This correction does not necessarily mean that she was lying, nor that it was proper for the district court to disregard the rest of her testimony about working before her shift. Summit also contends that even if the court erred in discrediting Kellar’s testimony, it correctly found that the Portal-to-Portal Act applies because Kellar performed her pre-shift activities primarily for her “own convenience.” Summit points to Kellar’s deposition testimony in which she stated that she arrived early because it would be a “hassle” to show up at 5:00 a.m. and get her subordinates up and running close to the start of their 5:00 a.m. work shifts. The Portal-to-Portal Act exempts those activities that are “predominantly ... spent in [the employee’s] own interests,” meaning those activities that are undertaken “for [the employee’s] own convenience, not being required by the employer and not being necessary for the performance of [the employee’s] duties for the employer.” Dunlop v. City Electric, Inc., 527 F.2d 394, 398 (5th Cir.1976); see also 29 C.F.R. § 790.8(c) (pre-shift activities undertaken primarily for the employee’s convenience are preliminary or postliminary). The Portal-to-Portal Act, however, does not relieve employers from liability for any work of consequence performed for an employer from which the employer derives significant benefit. Dunlop, 527 F.2d at 399. Here, Summit conceded for purposes of its motion for summary judgment that Kellar performed pre-shift “work.” That concession forecloses Sum mit’s argument. “Work” is “exertion ... pursued necessarily and primarily for the benefit of the employer.” See IBP, 546 U.S. at 25, 126 S.Ct. 514. Therefore, by definition, “work” is performed not for the employee’s “convenience,” but for the employer’s benefit. Kellar’s subjective reasons for arriving early simply do not matter for purposes of determining whether her pre-shift activities primarily benefitted her or Summit. See 29 C.F.R. § 785.11 (“[A]n employee may voluntarily continue"
},
{
"docid": "7842252",
"title": "",
"text": "WILLIAMS, Circuit Judge. Susan Kellar contends that she is entitled to overtime under the Fair Labor Standards Act for work performed prior to the official start of her work shift. The district court granted summary judgment in favor of her employer, Summit Seating, because it found that Kellar’s pre-shift activities were “preliminary,” that any work Kellar performed before her shift was “de minimis,” and that Summit did not know that Kellar was engaging in pre-shift work. While we disagree with the district court’s conclusions regarding the “preliminary” and “de minimis ” nature of Kellar’s preshift work, we affirm because we conclude that Summit did not know or have reason to know that Kellar was working before her shift. I. BACKGROUND Summit Seating (“Summit”) is a small company that manufactures seating for buses, trucks, and vans. In 2001, Susan Kellar began working for Summit as a cutter’s helper, and in 2004 she was promoted to sewing manager. In that capacity, she was responsible for supplying sewers with their sewing products, tracking supplies, ensuring that work was completed on schedule, and training junior employees. Kellar managed between seven and eight employees, and was paid on an hourly basis. In her deposition, Kellar claimed that she regularly arrived at Summit’s factory between 15 and 45 minutes before the start of her 5:00 a.m. shift. When she arrived before or at the same time as her sister and co-worker, Mamie Spice, Kellar spent about 5 minutes unlocking doors, turning on lights, turning on the compressor, and punching in on the time clock. Then she prepared coffee for the rest of Summit’s employees, which took her about 5 minutes. Depending on her workload, she spent 5 to 10 minutes (or longer) reviewing schedules and gathering and distributing fabric and materials to her subordinates’ workstations, “so that they could go straight to work, rather than waiting for [her] to bring [fabric] to them.” For another 5 minutes, she drank coffee and smoked a cigarette. The remaining time was spent performing “prototype work” (preparing models for production), cleaning the work area, or checking patterns. According to Kellar,"
},
{
"docid": "7842258",
"title": "",
"text": "not “on notice” that the district court would consider whether her activities were “preliminary.” In its motion for summary judgment, Summit only argued that it did not know that Kellar was working overtime and that Kellar’s preshift work was de minimis. Summit cited the Portal-to-Portal Act, but it did not contend that Kellar’s activities were “preliminary.” And the court did not apprise Kellar, before it issued its order, that it was considering whether Kellar’s activities were preliminary. Kellar, however, does not argue that she would have come forward with additional evidence had the court given her notice. Instead, she seems to be arguing that she was not given the opportunity to present argument to the court. While we agree with Kellar that the court should have given her notice and an opportunity to brief the issue, “reversal is not required in every instance of procedural shortfall. Instead, a litigant ... must show that notice and an opportunity to respond would have mattered.” See Alioto v. Marshall Field’s & Co., 77 F.3d 934, 936 (7th Cir.1996). Because at this juncture the parties have presented all of their evidence, and Kellar has now had the opportunity to argue her case to us, we shall consider whether the court erred in finding that the Portal-to-Portal Act bars recovery in this case. The Portal-to-Portal Act provides that activities that are “preliminary” to principal activities are not compensable. The Act does not purport to define “preliminary” activities further. But the Supreme Court has held that activities that are “an integral and indispensable part of [an employee’s] principal activities,” are not “preliminary,” but are also “principal activities,” and are compensable even if they occur before the beginning of an employee’s shift. See Steiner v. Mitchell, 350 U.S. 247, 253, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956). Kellar testified that she began her day (after unlocking doors and making coffee for employees) reviewing work schedules and gathering and distributing fabric and materials to her subordinates’ workstations. Such activities are surely “integral and indispensable” to the work that Kellar performed in her capacity as a sewing manager,"
},
{
"docid": "7842256",
"title": "",
"text": "district court granted summary judgment in favor of Summit, finding that Kellar was not entitled to overtime wages. This appeal followed. II. ANALYSIS The FLSA requires employers to pay overtime to certain employees who work more than 40 hours in a work week. 29 U.S.C. § 207(a). The employee bears the burden of proving that she performed overtime work for which she was not properly compensated. Anderson v. Mt. Clemens, 328 U.S. 680, 686-87, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superseded on other grounds by statute, Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-262. The employer bears the burden to establish that an exemption from the FLSA applies. Corning Glass Works v. Brennan, 417 U.S. 188, 196-97, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); Kennedy v. Commonwealth Edison Co., 410 F.3d 365, 370 (7th Cir.2005). We review the district court’s entry of summary judgment de novo, construing all facts and inferences in the light most favorable to the non-moving party. Cardoso v. Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir.2005). A. Kellar’s Pre-Shift Activity Was Non-Preliminary Work The district court found that Kellar’s pre-shift activities were non-compensable “preliminary” activities under the Portal-to-Portal Act of 1947. The Portal-to-Portal Act, in relevant part, amended the FLSA to eliminate employer liability “on account of ... activities which are preliminary to or postliminary to [principal activities,] which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal [activities].” 29 U.S.C. § 254(a). As a threshold matter, Kellar contends that it was improper for the district court to have considered whether her activities were “preliminary” because Summit did not make that argument in its motion for summary judgment. A district court may enter summary judgment sua sponte on an issue not explicitly argued if the losing party is on notice that she has to come forward with all of her evidence. See Acequia, Inc. v. Prudential Ins. Co. of Am., 226 F.3d 798, 807 (7th Cir.2000). We agree with Kellar that she was"
},
{
"docid": "7842259",
"title": "",
"text": "Because at this juncture the parties have presented all of their evidence, and Kellar has now had the opportunity to argue her case to us, we shall consider whether the court erred in finding that the Portal-to-Portal Act bars recovery in this case. The Portal-to-Portal Act provides that activities that are “preliminary” to principal activities are not compensable. The Act does not purport to define “preliminary” activities further. But the Supreme Court has held that activities that are “an integral and indispensable part of [an employee’s] principal activities,” are not “preliminary,” but are also “principal activities,” and are compensable even if they occur before the beginning of an employee’s shift. See Steiner v. Mitchell, 350 U.S. 247, 253, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956). Kellar testified that she began her day (after unlocking doors and making coffee for employees) reviewing work schedules and gathering and distributing fabric and materials to her subordinates’ workstations. Such activities are surely “integral and indispensable” to the work that Kellar performed in her capacity as a sewing manager, such as supplying sewers with their sewing products, tracking supplies, and making sure that work was completed on schedule. See IBP, Inc. v. Alvarez, 546 U.S. 21, 33, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005) (activities which are “integral and indispensable” to “principal activities” are themselves “principal activities”). Work activities that Kellar performed afterward would be covered by the “continuous workday rule,” which provides that the Portal-to-Portal Act does not apply “to the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday.” 29 C.F.R. § 790.6(a); IBP, 546 U.S. at 29,126 S.Ct. 514. The district court reached a different conclusion because it credited Mamie Spice’s affidavit to the effect that Spice and Kellar spent their pre-shift time socializing instead of working. The court acknowledged that Kellar’s deposition testimony directly contradicted Spice’s affidavit, but it did not accept Kellar’s version of the events in question because Kellar “offer[ed] no evidence other than her own testimony to support her argument.” This was error."
},
{
"docid": "7842260",
"title": "",
"text": "such as supplying sewers with their sewing products, tracking supplies, and making sure that work was completed on schedule. See IBP, Inc. v. Alvarez, 546 U.S. 21, 33, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005) (activities which are “integral and indispensable” to “principal activities” are themselves “principal activities”). Work activities that Kellar performed afterward would be covered by the “continuous workday rule,” which provides that the Portal-to-Portal Act does not apply “to the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday.” 29 C.F.R. § 790.6(a); IBP, 546 U.S. at 29,126 S.Ct. 514. The district court reached a different conclusion because it credited Mamie Spice’s affidavit to the effect that Spice and Kellar spent their pre-shift time socializing instead of working. The court acknowledged that Kellar’s deposition testimony directly contradicted Spice’s affidavit, but it did not accept Kellar’s version of the events in question because Kellar “offer[ed] no evidence other than her own testimony to support her argument.” This was error. Absent a finding, not made here, that the usual requirements for evidence at the summary judgment stage were not met, evidence presented in a “self-serving” affidavit or deposition is enough to thwart a summary judgment motion. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir.2003). Kellar’s deposition testimony created a factual dispute, and the court was not free to resolve it in Summit’s favor. See McAllister v. Price, 615 F.3d 877, 884 n. 1 (7th Cir.2010) (“Given the evidence on both sides, [there] are factual disputes [that are] not amenable to resolution on summary judgment.”). On appeal, Summit argues that the district court properly disregarded Kellar’s testimony because it was inconsistent and conclusory. But Kellar discussed her preshift activities in a fair amount of detail. And any inconsistencies in her testimony were minor. For example, Summit faults Kellar for first testifying that she regularly arrived between 30 and 45 minutes before her shift, but then acknowledging that she also sometimes arrived 15 minutes early and sometimes arrived late. There is no serious inconsistency in this"
},
{
"docid": "20544420",
"title": "",
"text": "... (4) employees would receive windfall payments, including liquidated damages, of sums for activities performed by them without any expectation or reward beyond that included in their agreed rates of pay; (5) there would occur the promotion of increasing demands for payment to employees for engaging in activities no compensation for which had been contemplated by either the employer or employee at the time they were engaged in; . . . It was further declared that the Act was necessary to meet “existing emergency and to correct existing evils.” 29 U.S.C. § 251(b). The exemption created by Section 4 of the Portal-to-Portal Act (29 U.S.C. § 254) is the provision most pertinent to the instant case and the one passed in direct response to the Mt. Clemens decision. Section 4 of the Portal-to-Portal Act provides that no overtime compensation shall be due for: “(1) Walking, riding, or traveling to and from the actual place or performance of the principal activity or activities which such employee is employed to perform; and (2) activities which are preliminary (to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.” After the passage of the Portal-to-Portal Act, the United States Supreme Court interpreted the Section 4 exemptions in Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956), and set forth the test to be applied for determining whether an activity is preliminary or postliminary to the principal work activities of the employee. “We, therefore, conclude that activity performed either before or after the regular work shift, on or off the production line, are compensable under the Portal-to-Portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed . . . .” 350 U.S. 256, 76 S.Ct. 335, 100 L.Ed.2d 273. The Supreme Court left for the lower courts to decide as each"
},
{
"docid": "4617489",
"title": "",
"text": "construing “hours worked” under the FLSA). The Portal-to-Portal Act provides that certain preliminary and after work activities are noncompensable: (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.... 29 U.S.C. § 254(a). In 1956, the Supreme Court carved an exception to the Portal-to-Por tal Act in Steiner v. Mitchell to ensure that not all “preliminary or postliminary” activities can go uncompensated. 350 U.S. 247, 249, 76 S.Ct. 330, 100 L.Ed. 267 (1956) (holding that battery plant workers who were compelled to change their clothes before and after work and to shower in facilities provided by the employer were entitled to compensation for these activities under the Portal-to-Portal Act). Specifically, Steiner held that “activities performed either before or after the regular work shift” are compensable despite the Portal-to-Portal Act “if those activities are an integral and indispensable part of the principal activities ... and are not specifically excluded by Section 4(a)(1).” Id. at 256, 76 S.Ct. 330 (referring to 29 U.S.C. § 254(a)(1), which defines commuting time between home and work as noncompensable). The Department of Labor (“DOL”) has explained that an activity is “an integral part of a principal activity” if it is a “closely related” activity that is “indispensable to its performance.” 29 C.F.R. § 790.8(c). See also Bamonte v. City of Mesa, 598 F.3d 1217, 1223 (9th Cir.2010) (providing that the DOL’s policy statements are not entitled to deference, but are “entitled to respect ... to the extent that they have the power to persuade.”) (quoting Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000)). Finally, the Supreme Court in Anderson articulated a de minimis doctrine which remained undisturbed by the passage of the Portal-to-Portal Act."
},
{
"docid": "11468178",
"title": "",
"text": "principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities” are not compensable. 29 U.S.C. § 254(a)(2). The Supreme Court has since noted, however, that, other than excluding walking and preliminary and post-liminary activities from FLSA coverage, the statute “does not purport to change [the Supreme Court’s] earlier descriptions of the terms ‘work’ and ‘workweek,’ or to define the term ‘workday.’ ” IBP, Inc. v. Alvarez, 546 U.S. 21, 28, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). Shortly after the Portal-to-Portal Act was enacted, the Department of Labor issued interpretations defining a workday as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities” and providing that “to the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday,” those activities are not excluded from FLSA coverage by the Portal-to-Portal Act. 29 C.F.R. § 790.6(a-b). Thus, walking and preliminary and postliminary activities are com-pensable under FLSA, in spite of the Portal-to-Portal Act, so long as they occur after the workday has begun and before it has ended. This is known as the “continuous workday rule,” which has remained in effect since 1947, Alvarez, 546 U.S. at 28-29, 126 S.Ct. 514, and the application of which the defendants do not dispute (Docket No. 244 at 5). Although the Portal-to-Portal Act limits FLSA coverage of preliminary and postliminary activities, the Supreme Court has held that such activities nevertheless are compensable “if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed.” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956); see also 29 C.F.R. § 790.8(b-c) (noting that the term “principal activity” includes activities that are an integral part of a principal activity and are"
},
{
"docid": "8896356",
"title": "",
"text": "commutes are noneompensable because section 254(a)(1) of the Portal Act relieves employers from paying employees for time spent “traveling” to and from work. Defendant also asserts that the Portal Act’s compensation exception for activities that are “preliminary” or “postliminary” to employees’ principal activities, 29 U.S.C. § 254(a)(2), also renders plaintiffs’ commutes noneompensable. Alternatively, defendant argues that if plaintiffs’ commutes are deemed compensable, any compensation should be limited to actual work performed by plaintiffs during their commutes, which is de minimis. Plaintiffs counter that they are engaged in activities that are integral or indispensable to their principal duties throughout their commutes to and from work. Hence, plaintiffs argue that their entire commute time is compensa-ble and that the Portal Act’s travel and pre-hminary/postliminary exceptions are inapplicable. 3. Case law construing the FLSA The Supreme Court considered the Portal Act’s impact on the FLSA in Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956). Employees in Steiner sought FLSA compensation for time spent changing clothes and showering at defendant’s battery plant before and after their scheduled shifts. The court analyzed the compensability of these activities under the following framework: If showering and changing clothes before and after each shift was “an integral or indispensable part of the principal activities for which [the] covered workmen [w]ere employed,” id., at 256, 76 S.Ct. at 335, then such tasks would be considered principal activities and compensable, rather than preliminary or postliminary activities and noneompensable, regardless of whether the activities were performed before or after the employees’ scheduled workdays. Against this backdrop the Court in Steiner held that because the employees’ pre- and post-shift cleansing activities were necessary to protect themselves from the toxins that permeated defendant’s plant, they were integral and indispensable to the employees’ principal activities. The Portal Act’s prelim inary/postliminary compensation exception was inapplicable, so that plaintiffs were entitled to FLSA compensation for their time spent showering and changing before and after their scheduled workdays. The reasoning set forth in Steiner has been discussed in a spate of commute eases involving claims for compensation under the FLSA. See Reich"
},
{
"docid": "22886476",
"title": "",
"text": "Activities and the “Continuous Workday” Rule The FLSA “guaranteed compensation for all work or employment engaged in by employees covered by the Act.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602, 64 S.Ct. 698, 88 L.Ed. 949 (1944). However, the statute does not define what constitutes compensable “work.” IBP, Inc. v. Alvarez, 546 U.S. 21, 25, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). After early Supreme Court cases defined the term “broadly,” id., Congress passed the Portal-to-Portal Act of 1947, 29 U.S.C. § 251 et seq., which narrowed the FLSA’s coverage by providing that compensable work does not include: (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. 29 U.S.C. § 254(a). The Supreme Court has since established that “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ under § [254(a) ],” and thus compensable under the FLSA even if performed before or after the regular shift. IBP, 546 U.S. at 37, 126 S.Ct. 514; see Steiner v. Mitchell, 350 U.S. 247, 252-53, 76 S.Ct. 330, 100 L.Ed. 267 (1956). Whether an activity is “integral and indispensable” to an employee’s principal activities is a fact-dependent inquiry. See Reich v. N.Y.C. Transit Auth., 45 F.3d 646, 650 (2d Cir.1995). Pursuant to the DOL’s “continuous workday rule, ... the ‘workday’ is generally defined as ‘the period between the commencement and completion on the same workday of an employee’s principal activity or activities.’ ” IBP, 546 U.S. at 29, 126 S.Ct. 514 (quoting 29 C.F.R. § 790.6(b)). The rule “provides that ‘[p]eriods of time between the commencement of the employee’s first principal activity and the completion of his last principal activity on any"
},
{
"docid": "4070007",
"title": "",
"text": "included “all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.... ” Congress enacted the Portal-to-Portal Act, 29 U.S.C. §§ 251-62, in response to Mt. Clemens and other judicial decisions that, in Congress’s view, interpreted the FLSA “in disregard of long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities.” 29 U.S.C. § 251(a). Among other things, the Portal-to-Portal Act provided that employers could not be liable under the FLSA for failure to compensate time an employee spent performing activities that were preliminary or postliminary to “the principal activity or activities which such employee is required to perform.” 29 U.S.C. § 254(a). The Supreme Court interpreted this provision to mean that activities performed prior or subsequent to a regular work shift are compensable if they are “an integral and indispensable part of the principal activities for which covered workmen are employed .... ” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956). In 2005, the Supreme Court held that, assuming donning and doffing was an integral and indispensable activity, any post-donning and pre-doffing walking time (i.e., between locker rooms and production areas) would be compensable under the Portal-to-Portal Act. IBP, 546 U.S. at 36, 126 S.Ct. 514. Congress amended the FLSA again in 1949 enacting, among other provisions, what is now 29 U.S.C. § 203(o). Section 203(o) defines hours worked: Hours worked. — In determining for the purposes of sections 206 and 207 of this title [minimum wage and maximum hours] the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee. Colorado Wage Order 27 The Colorado Minimum Wage Act, Colo. Rev.Stat. §§ 8-6-101-8-6-119, prohibits employment of workers “for wages which are inadequate to supply the necessary cost of"
},
{
"docid": "19641375",
"title": "",
"text": "permitted to stand, ... the payment of such liabilities would bring about financial ruin of many employers\" and \"employees would receive windfall payments ... for activities performed by them without any expectation of reward beyond that included in their agreed rates of pay.\" §§ 251(a)-(b). Congress met this emergency with the Portal-to-Portal Act. The Portal-to-Portal Act exempted employers from liability for future claims based on two categories of work-related activities as follows: \"(a) Except as provided in subsection (b) [which covers work compensable by contract or custom], no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, ... on account of the failure of such employer ... to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act- \"(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and \"(2) activities which are preliminary to or postliminary to said principal activity or activities, \"which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.\" § 4, 61 Stat. 86-87 (codified at 29 U.S.C. § 254(a)). At issue here is the exemption for \"activities which are preliminary to or postliminary to said principal activity or activities.\" B This Court has consistently interpreted \"the term 'principal activity or activities' [to] embrac[e] all activities which are an 'integral and indispensable part of the principal activities.' \" IBP, Inc. v. Alvarez,546 U.S. 21, 29-30, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005)(quoting Steiner v. Mitchell,350 U.S. 247, 252-253, 76 S.Ct. 330, 100 L.Ed. 267 (1956)). Our prior opinions used those words in their ordinary sense. The word \"integral\" means \"[b]elonging to or making up an integral whole; constituent, component; spec[ifically] necessary to the completeness or integrity of the whole; forming an intrinsic portion or element,"
},
{
"docid": "4211727",
"title": "",
"text": "pursued necessarily and primarily for the benefit of the employer and his business.” Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598, 64 S.Ct. 698, 88 L.Ed. 949 (1944), superseded by statute on other grounds, Portal-to-Portal Act of 1947, Pub.L. No. 80-49, 61 Stat. 84. The Court then “clarified that ‘exertion’ was not in fact necessary for an activity to constitute ‘work’ under the FLSA.” Alvarez, 546 U.S. at 25, 126 S.Ct. 514, citing Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 89 L.Ed. 118 (1944). Whether an employee’s activity is “work” does not end the compensability analysis. In the Portal-to-Portal Act, Congress excluded some activities that might otherwise constitute work from the FLSA. The Act excepts two categories: (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. 29 U.S.C. § 254(a); Alvarez, 546 U.S. at 26-28, 126 S.Ct. 514. “[Activities performed either before or after the regular work shift, on or off the production line, are compensable ... if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by [29 U.S.C. § 254(a)(1) ].” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956) (emphasis added). And, “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ under [29 U.S.C. § 254(a) ].” Alvarez, 546 U.S. at 37, 126 S.Ct. 514. The Department of Labor has a “continuous workday rule,” generally defining an employee’s “workday” as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” 29 C.F.R. § 790.6(b); Alvarez,"
},
{
"docid": "11468179",
"title": "",
"text": "the last principal activity on a particular workday,” those activities are not excluded from FLSA coverage by the Portal-to-Portal Act. 29 C.F.R. § 790.6(a-b). Thus, walking and preliminary and postliminary activities are com-pensable under FLSA, in spite of the Portal-to-Portal Act, so long as they occur after the workday has begun and before it has ended. This is known as the “continuous workday rule,” which has remained in effect since 1947, Alvarez, 546 U.S. at 28-29, 126 S.Ct. 514, and the application of which the defendants do not dispute (Docket No. 244 at 5). Although the Portal-to-Portal Act limits FLSA coverage of preliminary and postliminary activities, the Supreme Court has held that such activities nevertheless are compensable “if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed.” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956); see also 29 C.F.R. § 790.8(b-c) (noting that the term “principal activity” includes activities that are an integral part of a principal activity and are indispensable to its performance). In Steiner, the Court distinguished “changing clothes and showering under normal conditions,” which are not compensable under FLSA, 350 U.S. at 249, 76 S.Ct. 330, from the donning and doffing of specialized protective gear that is integral and indispensable to an employee’s principal activity and therefore compensable, id. at 256, 76 S.Ct. 330. Recently, in Alvarez, the Supreme Court revisited its previous rulings on the com-pensability of various activities under FLSA and the Portal-to-Portal Act. In that case, the Court consolidated the appeals of two defendants (including that of IBP, Inc., a defendant here) and addressed the question of “whether postdonning and predoffing walking time” is compensable under FLSA or is excluded from FLSA coverage by the Portal-to-Portal Act. Alvarez, 546 U.S. at 30, 126 S.Ct. 514. A detailed consideration of the Court’s ruling is instructive. The facts in Alvarez were markedly similar to those here. In that case, employees were required to wear a complement of protective gear that they donned and doffed in a company locker room prior to"
},
{
"docid": "7842253",
"title": "",
"text": "completed on schedule, and training junior employees. Kellar managed between seven and eight employees, and was paid on an hourly basis. In her deposition, Kellar claimed that she regularly arrived at Summit’s factory between 15 and 45 minutes before the start of her 5:00 a.m. shift. When she arrived before or at the same time as her sister and co-worker, Mamie Spice, Kellar spent about 5 minutes unlocking doors, turning on lights, turning on the compressor, and punching in on the time clock. Then she prepared coffee for the rest of Summit’s employees, which took her about 5 minutes. Depending on her workload, she spent 5 to 10 minutes (or longer) reviewing schedules and gathering and distributing fabric and materials to her subordinates’ workstations, “so that they could go straight to work, rather than waiting for [her] to bring [fabric] to them.” For another 5 minutes, she drank coffee and smoked a cigarette. The remaining time was spent performing “prototype work” (preparing models for production), cleaning the work area, or checking patterns. According to Kellar, no one told her that she needed to come in before her shift, but she arrived early because it would have been “a hassle” to show up at 5:00 a.m. and still get her subordinates up and running close to the start of their 5:00 a.m. work shifts. Kellar’s time cards reflect that she often punched in early, although on those days when she forgot to clock in, Kellar would write the official start time of her shift on her time card. Spice, who is still employed at Summit, tells a different story. In an affidavit, Spice claimed that Kellar never performed any work before the start of her shift. Rather, after clocking in, she and Kellar would chat and drink coffee until their shifts began. Kellar acknowledged in her deposition that many Summit employees would clock in early and socialize until the start of their shifts. And on one occasion, at her supervisor’s behest, Kellar reprimanded a subordinate for punching in too early. Nevertheless, Kellar insists that, excluding a five-minute smoking and coffee break,"
},
{
"docid": "4211728",
"title": "",
"text": "the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. 29 U.S.C. § 254(a); Alvarez, 546 U.S. at 26-28, 126 S.Ct. 514. “[Activities performed either before or after the regular work shift, on or off the production line, are compensable ... if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by [29 U.S.C. § 254(a)(1) ].” Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed. 267 (1956) (emphasis added). And, “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ under [29 U.S.C. § 254(a) ].” Alvarez, 546 U.S. at 37, 126 S.Ct. 514. The Department of Labor has a “continuous workday rule,” generally defining an employee’s “workday” as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” 29 C.F.R. § 790.6(b); Alvarez, 546 U.S. at 29, 37, 126 S.Ct. 514 (describing and applying the continuous workday rule). During the continuous workday, the compensabili ty of all activities that otherwise satisfy the requirements of the FLSA is not affected by the Portal-to-Portal Act’s exceptions. In Alvarez, the Supreme Court held that “during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity is excluded from the scope of [the Portal-to-Portal Act], and as a result is covered by the FLSA.” Alvarez, 546 U.S. at 37, 126 S.Ct. 514. II. The employees argue that the district court should have granted them judgment as a matter of law that the donning and doffing of non-unique items was: (1) compensable as part of the continuous workday, (2) “work” under the FLSA, and (3) “integral and indispensable” under the Portal-to-Portal Act. This court is unable to address these arguments because the employees did not preserve them for appeal. The employees do not identify where in"
},
{
"docid": "4500494",
"title": "",
"text": "principal activity. The ease at bar is another in that long line. One of the first authorities in that line was Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956). In that case, the Supreme Court considered whether changing clothes and showering were among the principal work activities for workers at a battery plant who, because of the exposure to toxic chemicals inherent in their jobs, were compelled to don protective clothing prior to their work and to remove their clothes and shower following their work. The Supreme Court held that, under normal circumstances, changing clothes and showering would not be compensable, but because the employees would not have been able to work in the battery plant without changing clothes and showering, those activities were compensable “under the portal-to-portal provisions of the Fair Labor Standards Act [because] those activities [were] an integral and indispensable part of the principle activities for which the covered workmen are employed.” Id. at 256, 76 S.Ct. 330 (emphasis added). On the same day that Steiner was decided, the Supreme Court held in Mitchell v. King Packing Co., 350 U.S. 260, 263, 76 S.Ct. 337, 100 L.Ed. 282 (1956), that because sharpening knives was integral and indispensable to the task of butchering animals, the employees of a packing plant must be paid for the time spent before and after their principal butchering duties during which they sharpened the knives they used. Id. at 262, 76 S.Ct. 337. In the more recent case of IBP, Inc. v. Alvarez, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005), the Supreme Court observed that, although the Portal-to-Portal Act expressly excludes commuting and preliminary and postliminary activities from coverage under the FLSA, it does not purport to change the previously articulated definition of “work” and therefore does not effect how work hours were computed “within” the workday. Id. at 28,126 S.Ct. 514. (relying in part on Department of Labor regulation 29 C.F.R. § 790.6(a) (“the Portal Act does not affect the computation of hours worked within the “workday’ proper, roughly described as the period ‘from"
},
{
"docid": "22886477",
"title": "",
"text": "ceases, such principal activity or activities. 29 U.S.C. § 254(a). The Supreme Court has since established that “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself a ‘principal activity’ under § [254(a) ],” and thus compensable under the FLSA even if performed before or after the regular shift. IBP, 546 U.S. at 37, 126 S.Ct. 514; see Steiner v. Mitchell, 350 U.S. 247, 252-53, 76 S.Ct. 330, 100 L.Ed. 267 (1956). Whether an activity is “integral and indispensable” to an employee’s principal activities is a fact-dependent inquiry. See Reich v. N.Y.C. Transit Auth., 45 F.3d 646, 650 (2d Cir.1995). Pursuant to the DOL’s “continuous workday rule, ... the ‘workday’ is generally defined as ‘the period between the commencement and completion on the same workday of an employee’s principal activity or activities.’ ” IBP, 546 U.S. at 29, 126 S.Ct. 514 (quoting 29 C.F.R. § 790.6(b)). The rule “provides that ‘[p]eriods of time between the commencement of the employee’s first principal activity and the completion of his last principal activity on any workday must be included in the computation of hours worked to the same extent as would be required if the Portal Act had not been enacted.’ ” Singh v. City of New York, 524 F.3d 361, 372 n. 8 (2d Cir.2008) (Sotomayor, J.) (quoting 29 C.F.R. § 790.6(a)); see 29 C.F.R. § 790.6(a) (“[T]o the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday, the provisions of [29 U.S.C. § 254(a) ] have no application.”). In IBP, the Supreme Court held that the time spent by slaughterhouse employees before and after their shifts walking between their locker rooms — where they engaged in the principal activities of donning and doffing their protective gear — and the slaughterhouse floor was part of the continuous workday and therefore compensable under the FLSA. 546 U.S. at 37, 126 S.Ct. 514 (“[D]uring a continuous workday, any walking time that occurs"
},
{
"docid": "22886478",
"title": "",
"text": "workday must be included in the computation of hours worked to the same extent as would be required if the Portal Act had not been enacted.’ ” Singh v. City of New York, 524 F.3d 361, 372 n. 8 (2d Cir.2008) (Sotomayor, J.) (quoting 29 C.F.R. § 790.6(a)); see 29 C.F.R. § 790.6(a) (“[T]o the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday, the provisions of [29 U.S.C. § 254(a) ] have no application.”). In IBP, the Supreme Court held that the time spent by slaughterhouse employees before and after their shifts walking between their locker rooms — where they engaged in the principal activities of donning and doffing their protective gear — and the slaughterhouse floor was part of the continuous workday and therefore compensable under the FLSA. 546 U.S. at 37, 126 S.Ct. 514 (“[D]uring a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity is ... covered by the FLSA.”). B. Kuebel’s At-Home Activities Did Not Extend His Workday Under the Continuous Workday Rule We need not and do not decide whether the district court correctly determined as a matter of law that the administrative tasks Kuebel performed at home were not integral and indispensable to his principal job activities. For, even if those tasks do qualify as integral and indispensable (and, thus, principal), they do not affect the compensability of Kuebel’s driving time. The parties’ arguments about the Portal-to-Portal Act, and the regulations and cases interpreting it, are largely beside the point. Section 254(a) does not impose any liability on employers; it only exempts them from liability for certain activities that the Supreme Court had briefly imposed before the Portal-to-Portal Act overruled it. See IBP, 546 U.S. at 24-27, 126 S.Ct. 514. Other than this exemption, “the Portal-to-Portal Act does not purport to change” earlier definitions of compensable work."
}
] |
623710 | now before this court upon a motion to remand. It is now well settled that under the provisions of the act of 1887, as amended by the act of 1888, a case cannot be removed from a state to the federal court, upon the ground that the controversy is one arising under the constitution and laws of the United States, unless it is made clear upon the face of the petition or hill filed by the plaintiff that in fact the controversy sought to be adjudicated is one arising under the federal constitution or statutes. Metcalf v. Watertown, 128 U. S. 586, 9 Sup. Ct. 173; Mining Co. v. Turck, 150 U. S. 138, 14 Sup. Ct. 35; REDACTED Ct. 654. From tlie ruling made by tbe court of appeals for this circuit in Bailey v. Mosher, 11 C. C. A. 304, 63 Fed. 488, it follows that actions based upon the express provisions of the banking act present controversies arising' under the laws of the United States, but the same are only maintainable, after- a bank has gone into insolvency, in the name of the receiver. In Hayden v. Thompson, 17 C. C. A. 592, 71 Fed. 60, it was furthermore ruled by the same court that a person legally injured by the wrongful acts of the officers and directors of a national bank, and which acts create causes of action under the principles of the common law, | [
{
"docid": "22752845",
"title": "",
"text": "a suit originally brought in that court, upon the ground that the suit was one arising under the Constitution, laws or treaties of the U nited States, unless that appeared in the plaintiff’s statement of his own claim. This was distinctly adjudged, and the reasons clearly stated, in Metcalf v. Watertown, 128 U. S. 586, 589, in which Mr. Justice Harlan, after pointing out that the cases, in which it had been held sufficient that the Federal question upon which the case depended was first presented by the answer or plea of the defendant, were cases of removal,.in which, therefore, the requisite of jurisdiction appeared on the record at the time when the jurisdiction of the Circuit Court of the United, States attached, said: “Where, however, the original jurisdiction of a Circuit Court of the United States is invoked upon the sole ground that the .determination! of the suit depends upon some question of a Federal nature, it must appear, at the outset, from the declaration or the bill of the party suing, that the suit is of that character; in other words, it must appear, in that class of 'cases, that the suit was one of which the Circuit Court, at the time its jurisdiction is invoked, could properly take cognizance. If it does not so appear, then the court, upon demurrer or motion, or upon its own inspection of the pleading, must dismiss the suit; just as it would remand to the state court á suit which the record, at the time of removal, failed to show was within the jurisdiction of the Circuit Court. It’cannot retain it in order to see whether the defendant may not raise some question of a Federal nature upon which the right of recovery will finally depend; and if so retained, the want of jurisdiction, at the commencement of the suit, is not cured by an answer or plea which may suggest a question of that kind.” That .view has been affirmed and acted on at the present term in Colorado Co. v. Turck, 150 U. S. 138, 143. The same rule"
}
] | [
{
"docid": "10014564",
"title": "",
"text": "pre-emption laws,” and that his right shall relate back to the date of settlement. The mere fact that the appellee settled on the land in controversy with the permission of the United States does not raise a federal question. No clause or provision of that statute is presented for construction, nor in dealing with the issues involved is the court called upon to apply or construe any provision of the federal Constitution or statutes. The case is unlike McCune v. Essig, 199 U. S. 382, 26 Sup. Ct. 78, 50 L. Ed. 237, and Spokane Falls, etc., Ry. v. Ziegler, 167 U. S. 65, 17 Sup. Ct. 728, 42 L. Ed. 79, cited and relied upon by the appellee. In the first of those cases, decision turned upon the construction of that portion of the homestead act which authorizes the issuance of a patent to the widow of a deceased homestead settler. In the second case, the plaintiff’s complaint disclosed the case of a contest between a settler claiming title under the preemption law of the United States, and a railroad company claiming a right under an act of Congress, and the court was required to construe the pre-emption act and define the rights of a settler thereunder. The case at bar is similar to Butler v. Shafer et al. (C. C.) 67 Fed. 161; King v. Lawson (C. C.) 84 Fed. 209; California Oil & Gas Co. v. Miller (C. C.) 96, Fed. 12; State of Washington v. Island Lime Co. (C. C.) 117 Fed. 777; Bushnell v. Smelting Co., 148 U. S. 682, 13 Sup. Ct. 771, 37 L. Ed. 610; Budzisz v. Steel Co., 170 U. S. 41, 18 Sup. Ct. 503, 42 L. Ed. 941; Shoshone Mining Co. v. Rutter, 177 U. S. 505, 20 Sup. Ct. 726, 44 L. Ed. 864; Mountain View Min. & Mill. Co. v. McFadden, 180 U. S. 533, 21 Sup. Ct. 488, 45 L. Ed. 656. It follows that the court below had no jurisdiction of the cause, and that the decree must be reversed, and the cause remanded, with"
},
{
"docid": "1609458",
"title": "",
"text": "Turck, 36 U. S. App. 208, 220, 221, 17 C. C. A. 128, and 70 Fed. 294; Durant Min. Co. v. Percy Consol. Min. Co., 35 C. C. A. 252, 93 Fed. 166. See, also, E. E. Bolles Wooden-Ware Co. v. U. S., 106 U. S. 432, 1 Sup. Ct. 398; Benson Min. Co. v. Alta Min. Co., 145 U. S. 428, 12 Sup. Ct. 877. It must be conceded, however, that it is competent for a state to change any of the common-law rules for the assessment of damages for an injury done to either real or personal property situated within its borders, or for the wrongful conversion of personal property there located, and that when such rules are modified by state legislation the local law must be enforced both by the state and the federal courts. Railroad Co. v. Hogan, 27 U. S. App. 184, 11 C. C. A. 51, and 63 Fed. 102; Gregor v. Hyde, 27 U. S. App. 75, 10 C. C. A. 290, and 62 Fed. 107; Bank v. Basuier, 27 U. S. App. 541, 12 C. C. A. 517, and 65 Fed. 58. While it must be conceded that the suit at bar is in form an action for trespass upon real property, yet we are persuaded that this fact is not a conclusive reason why the state statute relative to the assessment of damages for the wrongful conversion of personal property should be held inapplicable. In an action for trespass on realty, it is permissible, both under the Code of Procedure and at common law, to recover damages for the wrongful conversion of personal property, as well as for an injury done to the realty, when the taking and conversion of personal property are coincident with the injury done to the realty, or are the result of the same act or a continuous series of acts. In such cases the two kinds of damage may be recovered under one and the same count, where both species of damage are properly alleged and claimed. Coke Co. v. Reitz, 14 Ind. App. 478, 39"
},
{
"docid": "507511",
"title": "",
"text": "v. Union & Planters’ Bank, 153 U. S. 454, 14 Sup. Ct. 654, 38 L. Ed. 511, Postal Telegraph Co. v. Alabama, 155 U. S. 487, 15 Sup. Ct. 193, 39 L. Ed. 231, Oregon Short Line Ry. v. Skottowe, 162 U. S. 495, 16 Sup. Ct. 869, 40 L. Ed. 1048, Arkansas v. Kansas & Texas Coal Co., 183 U. S. 185, 33 Sup. Ct. 47, 46 L. Ed. 144, which requires that the facts showing that the case arose under the Constitution or laws of the United States shall appear by the plaintiff’s pleading and not elsewhere, or whether we should follow the rule in Stevens v. Nichols, 130 U. S. 231, 9 Sup. Ct. 518, 32 L. Ed. 914, and City of Ysleta v. Canada (C. C.) 67 Fed. 6, which permits the fact of diverse citizenship to be shown in the petition for removal, was the question to be solved. We found it in some confusion, some cases holding one way and some the other; but upon the averments of the petition for removal, as now amended and not controverted (Dishon v. Cincinnati, N. O. & T. P. Ry. Co., 133 Fed. 471, 66 C. C. A. 345), and upon the consideration that such an injunction as that prayed for, if granted, would represent a considerable money value, we have reached the conclusion not to remand the case. This brings us to the questions arising upon the demurrer. At the argument some contention was made by the complainant that the bill bore wider than a claim to relief under section 10 of the act of June 1, 1898, and possibly there might be some color for the suggestion if, as will be seen from the averments copied from the bill of complaint, the complainant did not charge the acts complained of to be violative of that statute and claim relief entirely upon that ground. Otherwise the averments of the bill as to the acts and conduct of the defendant as to force, intimidation, and violence are too general, vague, and indefinite to make a case for"
},
{
"docid": "10519182",
"title": "",
"text": "DENISON, Circuit Judge. The appellant filed his petition in a state court, seeking an injunction against the New York Central Railroad Company to prevent it from issuing certain equipment trust bonds. The defendant removed the case to the court below upon the ground that it arose under federal laws. The District Court overruled a motion to remand and denied a preliminary injunction. This appeal is from the latter order. While the action of the court below upon the motion to remand is not in that particular separately reviewable by this court, yet it is clear that, however the case gets here, the jurisdiction of the court below, based upon a removal petition, is involved, and must be decided, even if not challenged by either party. Supreme Council v. Hobart (C. C. A. 7) 244 Fed. 385, 157 C. C. A. 11. We consider it well settled that a cause of action does not arise under federal laws, so as to justify removal, unless the plaintiff’s right, to enforce which the suit is brought, arises out of and depends upon those laws, so that both in stating and in proving his case he must show that his right to recover stands upon the federal law; and that,' even though his complaint may disclose that the case will turn upon and be ruled by the construction and effect given to some federal law under which defendant is claiming, the federal jurisdiction will fail. Tennessee v. Union Bk., 152 U. S. 454, 459, 461, 14 Sup. Ct. 654, 38 L. Ed. 511; Arkansas v. Kansas Co., 183 U. S. 185, 193, 22 Sup. Ct. 47, 46 L. Ed. 144; Boston Co. v. Montana Co., 188 U. S. 632, 639, 23 Sup. Ct. 434. 47 L. Ed. 626; Louisville Co. v. Mottley, 211 U. S. 149, 152, 29 Sup. Ct. 42, 53 L. Ed. 126; In re Winn, 213 U. S. 458, 465, 29 Sup. Ct. 515, 53 L. Ed. 873; Denver v. Trust Co., 229 U. S. 123, 33 Sup. Ct. 657, 57 L. Ed. 1101; Taylor v. Anderson, 234 U. S. 74,"
},
{
"docid": "2030024",
"title": "",
"text": "the omission is fatal to the right of removal, and cannot be supplied or cured in this court, for the reason that the.case is not properly here, but jurisdiction still remains in the state court. Crehore v. Ohio & Miss. Ry. Co., 131 U. S. 240, 9 Sup. Ct. 692, 33 L. Ed. 144. In that case, after discussing the decisions of that court from which this principle is deduced, it is said: “It thug appears that a case is not, in law, removed from the state court upon the ground that it involves a controversy between citizens of different states, unless, at the time the application for removal is made, the record, upon its face, shows it to be one that is removable. We say, upon its face, because ‘the state court is only at liberty to inquire whether, on the face of the record, a case has been made which requires it to proceed no further’; and ‘all issues of fact made upon the petition for removal must be tried in the Circuit Court.’ Stone v. South Carolina, 117 U. S. 430, 432, 6 Sup. Ct. 799, 29 L. Ed. 962; Carson v. Hyatt, 118 U. S. 279, 287, 6 Sup. Ct. 1050, 30 L. Ed. 167. If the ease be not removed, the jurisdiction of the state court remains unaffected, and. under the act of Congress, the jurisdiction of the federal court could not attach until it becomes the duty of the state» court to proceed no further. No such duty arises unless a case is made by the record that entitles the party to a removal. “All Uiis is made entirely clear by the express requirement of the act of 1875 that the Circuit Court shall remand ‘to the court from which it was removed’ any cause brought from that court, whenever it appears that it is not one of which the federal c-onrt can properly take cognizance. Cameron v. Hodges, 127 U. S. 322, 326, 8 Sup. Ct 1154, 32 L. Ed. 132. If a suit entered upon the docket of a Circuit Court as"
},
{
"docid": "507510",
"title": "",
"text": "the district in which such offense was committed, shall be punished for each offense by a fine of not less than one hundred dollars and not more than one thousand dollars.” The bill also avers that the defendant is a common carrier engaged in interstate commerce. Upon the petition of the defendant the action was removed to this court, and subsequently the defendant demurred to the bill. Pending the consideration of the questions raised by the de - murrer doubts arose in the mind of the court as to whether the case was removable, and an argument was directed upon that question. It is, of course, manifest that the suit arises, at least in part, if not entirely, under the laws of the United States, but as tile complainant did not (and under the state practice need not) show any value in controversy, the question arose whether the value of the matter in dispute could be shown in the petition for removal alone. Whether we should as to this question follow the rule in Tennessee v. Union & Planters’ Bank, 153 U. S. 454, 14 Sup. Ct. 654, 38 L. Ed. 511, Postal Telegraph Co. v. Alabama, 155 U. S. 487, 15 Sup. Ct. 193, 39 L. Ed. 231, Oregon Short Line Ry. v. Skottowe, 162 U. S. 495, 16 Sup. Ct. 869, 40 L. Ed. 1048, Arkansas v. Kansas & Texas Coal Co., 183 U. S. 185, 33 Sup. Ct. 47, 46 L. Ed. 144, which requires that the facts showing that the case arose under the Constitution or laws of the United States shall appear by the plaintiff’s pleading and not elsewhere, or whether we should follow the rule in Stevens v. Nichols, 130 U. S. 231, 9 Sup. Ct. 518, 32 L. Ed. 914, and City of Ysleta v. Canada (C. C.) 67 Fed. 6, which permits the fact of diverse citizenship to be shown in the petition for removal, was the question to be solved. We found it in some confusion, some cases holding one way and some the other; but upon the averments of the"
},
{
"docid": "10341063",
"title": "",
"text": "with the courts of the several states, of all suits of a civil nature at law or in equity * ⅜ * in which there shall be a controversy between citizens of different states in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid [two thousand dollars].” Section 2 of the same act provides that: “Any other suit of a civil nature, at law or in equity [that is to say, any suit other than one arising under the constitution or laws of the United States or treaties made or which shall be made under their authority], of which the circuit-courts of the United States are given jurisdiction by the preceding section, and which are now pending or which may hereafter be brought in any state court. may ho removed into tlie circuit court of tlie United States for the proper district by the defendant or defendants therein being nonresidents of that state.” Where (he question of jurisdiction of the United States circuit court is presented, we are confronted at once with the presumption that the cause is without the jurisdiction of the court, unless the contrary affirmatively appears. Turner v. Bank, 4 Dall. 8, 1 L. Ed. 718; Ex parte Smith, 94 U. S. 455, 24 L. Ed. 165; Robertson v. Cease, 97 U. S. 646, 24 L. Ed. 1057; Grace v. Insurance Co., 109 U. S. 278, 283, 3 Sup. Ct. 207, 27 L. Ed. 932. We must also bear in mind that the acts of 1887 and 3888 were designed to contract the jurisdiction of the circuit courts, both with respect to causes original and by removal. Hanrick v. Hanrick, 153 U. S. 192, 197, 14 Sup. Ct. 835, 38 L. Ed. 685; Railway v. Brow, 164 U. S. 277, 17 Sup. Ct. 126, 41 L. Ed. 431; Camprelle v. Balbach (C. C.) 46 Fed. 81. It is also an established rule that parties seeking to remove causes to* the United States circuit court are bound to* comply strictly with every provision required by the act. One of the provisions"
},
{
"docid": "15864067",
"title": "",
"text": "court; and this class of cases is not embraced within the ruling of the supreme court above mentioned. Thus, it is said by Mr. Justice Cray in Chappell v. Waterworth, 155 U. S. 107, 15 Sup. Ct. 34, that: “Tbe question of removal is governed by the decision of this court in the last term, in Tennessee v. Bank of Commerce, 152 U. S. 454, 14 Sup. Ct. 654, by which, upon full consideration, it was adjudged that under the acts of March 3, 1887, c. 373 (24 Stat. 552), and August 13, 1888, c. 866 (25 Stat. 433), a case not depending upon the citizenship of the parties, nor otherwise specially provided for, cannot be removed from a state court into the circuit court of the United States, as one arising under the constitution, laws, or treaties of the United States, unless that appears by the plaintiff’s statement of his own claim; and that, if it does not so appear, the want cannot be supplied by any statement in the petition for removal or ‘in the subsequent pleadings.” It thus appears that, where removal of a cause is sought on the ground solely of diverse citizenship, it is not necessary that the original petition filed by the plaintiff in the state court should, upon its face, show the jurisdictional facts; it being sufficient in such case that diverse citizenship be made to appear by distinct and proper averments in the petition filed for removal of the cause. There being no other ground of objection urged by the plaintiff against the removal of this suit, it follows that the motion to remand should be overruled; and it is so ordered."
},
{
"docid": "15864066",
"title": "",
"text": "court, and that no deficiency in the plaintiff's statement in that respect can be supplied by the defendants in their petition for removal or any subsequent pleadings filed in the cause. This view is predicated upon a misapprehension of the real question decided by the supreme court in Chappell v. Waterworth, 155 U. S. 102, 15 Sup. Ct. 34, and Postal Tel. Cable Co. v. Alabama, 155 U. S. 482, 15 Sup. Ct. 192. In the two cases last cited, removal of the causes was attempted on the ground that the suits arose under the constitution or laws of the United States, that fact first appearing in the petitions for removal; and in those cases it was held that the causes were not removable, for the x*eason .that the original petitions of the plaintiffs, filed in the state court, failed to show, upon their face, that the suits arose under the federal constitution or laws. As before stated, diverse citizenship is the ground relied upon by the defendants to remove the case now before the court; and this class of cases is not embraced within the ruling of the supreme court above mentioned. Thus, it is said by Mr. Justice Cray in Chappell v. Waterworth, 155 U. S. 107, 15 Sup. Ct. 34, that: “Tbe question of removal is governed by the decision of this court in the last term, in Tennessee v. Bank of Commerce, 152 U. S. 454, 14 Sup. Ct. 654, by which, upon full consideration, it was adjudged that under the acts of March 3, 1887, c. 373 (24 Stat. 552), and August 13, 1888, c. 866 (25 Stat. 433), a case not depending upon the citizenship of the parties, nor otherwise specially provided for, cannot be removed from a state court into the circuit court of the United States, as one arising under the constitution, laws, or treaties of the United States, unless that appears by the plaintiff’s statement of his own claim; and that, if it does not so appear, the want cannot be supplied by any statement in the petition for removal or"
},
{
"docid": "9330570",
"title": "",
"text": "More than two months thereafter the plaintiff moved that the cause be remanded to the state court. This motion was denied. Subsequently a decree was entered denying the plaintiff’s motion for substituted service, and leave to file a supplemental bill; granting the Rake Shore Company’s motion to dismiss; and dismissing the suit at the plaintiff’s costs; from which final decree the plaintiff has appealed. 1. Motion to remand. The petition for removal, which alleged diversity of citizenship between the plaintiff and all defendants and the requisite jurisdictional amount, was primarily based on a separable, controversy with the removing defendants arising under the laws of the United States. The plaintiff, while not denying the general grounds of Federal jurisdiction, insists that the suit was improperly removed to the District Court because of want of local jurisdiction in such court due to the fact that the New York Central Company was not an inhabitant of the district. It is unnecessary to determine whether, under the rule of Ex parte Wisner, 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264, In re Moore, 209 U. S. 491, 28 Sup. Ct. 585, 52 L. Ed. 904, 14 Ann. Cas. 1164, Louisville Railroad v. Fisher (6th Cir.) 155 Fed. 68, 83 C. C. A. 584, 11 L. R. A. (N. S.) 926, Turk v. Illinois Central Railroad (6th Cir.) 218 Fed. 315, 134 C. C. A. 111, and other similar cases, there was, in the first instance, a want of local jurisdiction in the court below. If general Federal jurisdiction exists, (he want of local jurisdiction or venue in the particular Federal court to which a cause has been removed, is waived, where the plaintiff, after the removal, without challenging such jurisdiction by motion to remand or otherwise, consents to and accepts such jurisdiction by affirmative acts in recognition thereof and submission thereto. In re Moore, 209 U. S. supra, at page 496, 28 Sup. Ct. 585, 52 L. Ed. 904, 14 Ann. Cas. 1164; Western Loan Co. v. Mining Co., 210 U. S. 368, 371, 28 Sup. Ct. 720, 52 L."
},
{
"docid": "8788595",
"title": "",
"text": "suit to this court under the provisions of section 643, R. S. (U. S. Comp. St. 1901, p. 521), on the ground that it is being prosecuted against an officer appointed and acting under the revenue law of the United States, was filed, and an ex parte order was made as prayed for. The plaintiff now moves to remand the suit for the reason that the reclamation act is not a revenue law within the meaning of the section referred to. This question has been recently considered and decided by Judge Deitrich in the District of Idaho. Twin Falls Canal Co., Ltd., v. Foote, 192 Fed. 583. His conclusions are that the reclamation act is not a revenue law within the meaning of section 643, and that suit commenced in the state court against an officer of the reclamation service cannot be removed to a federal court under the provisions of that section. I had examined the question and reached a similar conclusion before being advised of Judge Deitrich’s decision. 1 can, however, add nothing to his able and exhaustive opinion. It is suggested that, regardless of the method of removal, the court should retain jurisdiction because the suit is against an officer of the United States claiming to act under a law of Congress. But this is not sufficient to give this court jurisdiction, under the judiciary act of 1887, either as an original action or by removal from a state court. Tennessee v. Union & Planters’ Bank, 152 U. S. 454, 14 Sup. Ct. 654, 38 L. Ed. 511; Chappell v. Waterworth, 155 U. S. 102. 15 Sup. Ct. 34, 39 L. Ed. 85; Walker v. Collins, 167 U. S. 57, 17 Sup. Ct. 738. 42 L. Ed. 76; People's U. S. Bank v. Goodwin (C. C.) 160 Fed. 727. Although it would seem to have been enough under previous legislation. Feibelman v. Packard, 109 U. S. 421, 3 Sup. Ct. 289, 27 L. Ed. 984; Bachrack v. Norton, 132 U. S. 337, 10 Sup. Ct. 106, 33 L. Ed. 377. Motion to remand will be allowed."
},
{
"docid": "16107366",
"title": "",
"text": "case last cited, Mr. Justice Gray formulated a general rule ■which has been, accepted in all subsequent cases as expressing the law on this subject. He said: \"But, in order to justify such removal on the ground of a separate controversy between citizens of different states, there must, by the very terms of the statute, be a controversy ‘which can be fully determined as between them’; and, by the settled construction of this section, the whole subject-matter of the suit must he capable of being finally determined as between them, and complete relief afforded as to the separate cause of action, without the presence of others originally made parties to the suit” See, to the same effect, Deposit Co. v. Huntington, 117 U. S. 280, 6 Sup. Ct. 733; Bellaire v. Railroad Co., 146 U. S. 117, 13 Sup. Ct. 16; Hanrick v. Hanrick, 153 U. S. 192, 14 Sup. Ct. 835; Barth v. Coler, 9 C. C. A. 81, 60 Fed. 466. There is another fact disclosed by the record equally fatal to the jurisdiction of the circuit court. The plaintiff in the action is u citizen of Yew York, and the defendant Evans, on whose petition the suit was removed from the state to the circuit court, is a citizen of South Dakota,-—the state in which the suit was brought. The removal of suits upon the ground that they involve separate controversies was first provided for by the act of July 27, 1866 (14 Stab 306, c. 288). That act gave the right of removal to “the defendant, who is a citizen of a state other than that in, which the suit is brought.” The provision of the act of 1866, that the defendant authorized to remove a suit upon the ground of a. separable controversy must be a citizen of a state other than that in which the suit was pending, was in harmony with the rule that had always obtained with reference to the citizenship of a defendant in removing a cause from a state to a federal court. Under the judiciary act of 1789 (1"
},
{
"docid": "9479311",
"title": "",
"text": "proper party to the suit. There is nothing in the petition for removal or in the record showing the residence or citizenship of the receiver to be elsewhere than in Kansas. The suit was not, therefore, removable upon the ground of diverse citizenship. It is next contended that the suit was properly removed upon the ground that it is one arising under the laws of the United States. Since the passage of the act of March 3,1887, a national bank cannot remove a suit upon the ground that it is a federal corporation. The federal origin of the bank no longer affects in any way the jurisdic tion of suits by or against it. It bas no greater or less right to remove a suit upon the ground that it arises under the constitution or laws of the United States than any citizen of the state in which the bank is located. Petri v. Bank, 142 U. S. 644, 12 Sup. Ct. 325; Burnham v. Bank, 10 U. S. App. 485, 3 C. C. A. 486, 53 Fed. 163; Dill. Burn. Causes (5th Ed.) § 107. And upon this record the receiver of the bank has no greater rights in this regard than the bank. In Railway Co. v. Shirley, 111 U. S. 358, 361, 4 Sup. Ct. 472, the court say “that a substituted party comes into a suit subject to all the disabilities of him whose place he takes so far as the right of removal is concerned.” Burnham v. Bank, supra; Railway Co. v. Noyes’ Adm’r, 21 U. S. App. 45, 8 C. C. A. 237, 59 Fed. 727. Moreover, the petition for removal does not show that any federal question is involved in the case, and the record shows that no such question is involved. But, if the petition for removal disclosed that the suit was one arising under the laws of the United States, it could not be removed by the defendant upon that ground unless that fact appeared from the plaintiff’s complaint. Tennessee v. Union & Planters’ Bank, 152 U. S. 454, 14 Sup."
},
{
"docid": "17709158",
"title": "",
"text": "in and is an inhabitant of that state or district only under the laws of which it has been created and where is established its principal office and place of business. See McCormick v. Walthers, 134 U. S. 41, 43, 10 Sup. Ct. 485, 33 L. Ed. 833; Shaw v. Quincy Mining Co, 145 U. S. 445, 12 Sup. Ct. 935, 36 L. Ed. 768; Southern Pacific Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942; Galveston, etc, R. R. Co. v. Gonzales, 151 U. S. 496, 14 Sup. Ct. 401, 38 L. Ed. 248. Compare Keating v. Pennsylvania Co. (D. C.) 245 Fed. 155; Camp v. Gress, 250 U. S. 308, 39 Sup. Ct. 478, 63 L. Ed. 997. Upon tbe assumption, however, that plaintiff’s cause of action arises under the federal Employers’ Liability Act, the jurisdiction of' this court depends upon the construction proper to be given to section 6 of the'1910 amendment to that act (Comp. St. § 8662). That section is as follows: “Under this act an action may be brought in a Circuit Court of. the United States in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under, this Act shall be concurrent with that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any coiirt of the United States.” By this amendment, an action arising under that act may be brought in any one of four places: (1) In the district of the residence of the defendant; (2) in the district in which the cause of action arose; (3) in the district in which the defendant shall be doing business at the time of commencing such action; (4) in any state court which by the laws of the state has cognizance of the cause of action and"
},
{
"docid": "15617020",
"title": "",
"text": "until May 25, 1916, more than three months after it was required by the act of Congress to be filed, and is therefore too late, no excuse for the delay being shown. If the cause is a removable one, the filing of a sufficient petition and bond for its removal in the state court operates to remove the cause at’ once to the proper federal court, and there is no occasion to wait until the state court has acted on the petition. Kern v. Huidekoper, 103 U. S. 485, 490, 26 L. Ed. 354; Baltimore & O. R. R. Co. v. Koontz, 104 U. S. 5, 26 L. Ed. 643. The plaintiff has not moved to remand the cause upon the ground above considered; but the court may and should remand the cause upon its own motion, if the case, though a removable one, is not properly removed. Crehore v. Ohio, etc., Ry. Co., 131 U. S. 240, 9 Sup. Ct. 692, 33 L. Ed. 144; Burnham v. First National Bank, 53 Fed. 163-167, 3 C. C. A. 486; Barth v. Coler, 60 Fed. 466, 9 C. C. A. 81. It is also urged by the Cedar Valley Company that the record shows a separable controversy between the plaintiff and that company, because it appears from the plaintiff’s petition that the bill of sale made by the plaintiff to secure the loan from the Railway Company was taken in the name of the Cedar Valley Company, and that company alone, was the owner of the property.. This question need not be considered, for, if it be true, it does not enlarge the time within which the Cedar Valley Company'must apply for the removal of the suit. But see, however, Louisville & N. Ry. Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. 735, 29 L. Ed. 63; Hyde v. Ruble, 104 U. S. 407, 26 L. Ed. 823; Alabama Great Southern Ry. Co. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147; Little v. Giles, 118 U. S. 596, 601,"
},
{
"docid": "9479310",
"title": "",
"text": "CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. The removal of the case from the state to the federal court is attempted to be supported upon two grounds. The first contention is that the removal can be sustained upon the ground that the parties to the action are citizens of different states; but that is a ground of removal only where the defendant is a nonresident of the state in which the suit is brought. Thurber v. Miller, 14 C. C. A. 432, 67 Led. 371. The hank could not remove the suit upon this ground for the reason that by the provision of section 4 of the act of congress of March 3, 1887 (24 Stat. 552, c. 373), as corrected by the act of August 13, 1888 (25 Stat. 433, c. 866), the bank, for all jurisdictional purposes, is a.citizen of Kansas, in which state it is located. The appointment of a receiver for the hank did not dissolve the corporation. The bank still remained a proper party to the suit. There is nothing in the petition for removal or in the record showing the residence or citizenship of the receiver to be elsewhere than in Kansas. The suit was not, therefore, removable upon the ground of diverse citizenship. It is next contended that the suit was properly removed upon the ground that it is one arising under the laws of the United States. Since the passage of the act of March 3,1887, a national bank cannot remove a suit upon the ground that it is a federal corporation. The federal origin of the bank no longer affects in any way the jurisdic tion of suits by or against it. It bas no greater or less right to remove a suit upon the ground that it arises under the constitution or laws of the United States than any citizen of the state in which the bank is located. Petri v. Bank, 142 U. S. 644, 12 Sup. Ct. 325; Burnham v. Bank, 10 U. S. App. 485, 3 C. C. A."
},
{
"docid": "3610578",
"title": "",
"text": "ROGERS, District Judge, after stating the case as above, delivered the opinion of the court. In Railroad Co. v. Davidson, 157 U. S. 201, 15 Sup. Ct. 563, 39 L. Ed. 672, it was distinctly held that under section 2 of the act of March 3, 1887, as corrected by the act of August 13, 1888 (25 Stat. 433), the jurisdiction of a United States circuit court, on removal by tbe defendant from a state court, is limited to such suits as might have been originally brought in the United States circuit court by the plaintiff under- the first section of that act. All the courts have followed that decision, which is now the settled law. It is also decided in the same case that “the question is a question of jurisdiction, as such, and cannot be waived;” citing Capron v. Van Noorden, 2 Cranch, 126, 2 L. Ed. 229; Railway Co. v. Swan, 131 U. S. 379, 4 Sup. Ct. 510, 28 L. Ed. 462; Metcalf v. Watertown, 128 U. S. 586, 9 Sup. Ct. 173, 32 L. Ed. 543. The question, therefore, which arises on the very threshold of this case is, was it removable from the G-arland circuit court to the United States circuit court for the Western division of the Eastern district of Arkansas? The decision of that question turns upon the construction tp.be placed upon sections 1 and 2 of the corrected act of August 13, ÍS88 (25 Stat. 433). The portions of those sections of that act defining the jurisdiction of district and circuit courts of the United States which bear on the question involved are as follows: “Section 1. That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, * * * in which there shall he a controversy between citizens of different states,” etc. “Sec. 2. That any suit of"
},
{
"docid": "9479312",
"title": "",
"text": "486, 53 Fed. 163; Dill. Burn. Causes (5th Ed.) § 107. And upon this record the receiver of the bank has no greater rights in this regard than the bank. In Railway Co. v. Shirley, 111 U. S. 358, 361, 4 Sup. Ct. 472, the court say “that a substituted party comes into a suit subject to all the disabilities of him whose place he takes so far as the right of removal is concerned.” Burnham v. Bank, supra; Railway Co. v. Noyes’ Adm’r, 21 U. S. App. 45, 8 C. C. A. 237, 59 Fed. 727. Moreover, the petition for removal does not show that any federal question is involved in the case, and the record shows that no such question is involved. But, if the petition for removal disclosed that the suit was one arising under the laws of the United States, it could not be removed by the defendant upon that ground unless that fact appeared from the plaintiff’s complaint. Tennessee v. Union & Planters’ Bank, 152 U. S. 454, 14 Sup. Ct. 654; Postal Tel. Co. v. Alabama, 155 U. S. 482, 15 Sup. Ct. 192. The complaint does not show that the suit is one arising under the laws of the United States, but.the’contrary. The judgment of the circuit court is reversed, and the cause remanded, with directions to remand the same to the state court from whence it was removed. Ewing, the receiver, having wrongfully removed the case into the circuit court, must pay all the costs in that court as well as all costs that have accrued in this court."
},
{
"docid": "22047001",
"title": "",
"text": "Me. Chief Justice Fullee, after stating the case, delivered the opinion óf the court. The general policy of the act of March 3, 1887, corrected by the act of August 13, 1888; 24 Stat. c. 373, p. 552; 25 Stat. c. 866, p. 433, as is apparent on its face, and as has been repeatedly recognized by this court, was to contract the jurisdiction of the Circuit Courts. Tennessee v. Union & Planters' Bank, 152 U. S. 454, 462, and cases cited. And it is well settled that a case cannot be removed from a state court into the Circuit Court of the United States on the sole ground that it is one arising under the Constitution, laws or treaties of the United States, unless that appears by the plaintiff’s statement of his own claim, and, if it does not so appear, the want cannot be supplied by any statement in the petition for removal or in the subsequent pleadings. Walker v. Collins, 167 U. S. 57. It has also been determined that when the application rests on that ground, and there is more than one defendant, all the defendants must join. Railway Company v. Martin, 178 U. S. 245. And in respect of the removal of actions of tort on the ground of separable controversy, that the existence of such controversy must appear on the face of the plaintiff’s pleading, and that it does not so appear, if the defendants are charged with direct or concurrent or concerted wrongful action. Chesapeake & Ohio Railway Company v. Dixon, ante, 131. In this case the pleadings are not before us, and the certifi cate states that the receiver removed the cause into the Circuit Court, on his sole petition, “ upon the ground that it was a case arising under the Constitution and laws of the United States.” A motion to remand was made and denied. 82 Fed. Rep. 791. This decision was afterwards reversed by the Circuit Court of Appeals, but, as is admitted, a rehearing was granted, and this certificate was then made. 101 Fed. Rep. 1. The receiver"
},
{
"docid": "4249320",
"title": "",
"text": "AUGUSTUS N. HAND, District Judge. This is a motion to remand the above entitled action to the City Court of the City of New York, where it began. The action is to recover for alleged services by the plaintiff to the defendant in preparing advertising matter, and the judgment demanded is for the sum of $1,978.87. The action was removed upon the ground that it was one arising under the Constitution and laws of the United States, particularly because it arose under a law “regulating commerce, where there is no jurisdictional requirement as to the amount involved. Judicial Code, § 24, subd. 8 (Comp. St. § 991). The plaintiff moves to remand on the ground that this court could have no original jurisdiction of the cause of action set forth in the complaint, and in its brief says: “That a suit arises under the Constitution and laws of the United States only when the plaintiff’s statement of his own cause of action shows that it is based upon those laws or that Constitution.” In re Winn, 213 U. S. 465, 29 Sup. Ct. 516, 53 L. Ed. 873. While the above quotation from the opinion of Mr. Justice Moody states the general legal principle, it has long been held that an action against a corporation created by the laws of the United States is one of which the federal courts have original jurisdiction. Texas & Pacific Ry. Co. v. Kirk, 115 U. S. 1, 5 Sup. Ct. 1113, 29 L. Ed. 319; Texas & Pacific Ry. Co. v. Cody, 166 U. S. 606, 17 Sup. Ct. 703, 41 L. Ed. 1132; Osborn v. U. S. Bank, 9 Wheat. 738, 6 L. Ed. 204; Knights of Pythias v. Kalinski, 163 U. S. 289, 16 Sup. Ct. 1047, 41 L. Ed. 163; Walker v. Windsor National Bank, 56 Fed. 76, 5 C. C. A. 421. If original jurisdiction existed, removal may he had as a matter of course. Motions to remand were denied in cases like the present in Union Timber Products Co. v. U. S. Shipping Board Emergency Fleet Corporation (D."
}
] |
253625 | Longshore Contract Document (“contract”) does not prohibit favoritism and section 8.43 does not apply to clerk promotions. See United States v. Sacramento Mun. Util. Dist., 652 F.2d 1341, 1344 (9th Cir.1981); Miller v. United States, 363 F.3d 999, 1003-04 (9th Cir.2004). Appellants also failed to establish a genuine issue of material fact as to whether there was racial discrimination in the clerk promotions. The feelings and suspicions expressed by Battle and Barlow are not proof of discrimination. See Witherow, 52 F.3d at 266. Assuming without deciding that the Union owed members of Local 13 a duty of fair representation under section 17, appellants have not established a genuine issue of material fact as to whether the Union breached this duty. See REDACTED Burkevich v. Air Line Pilots Ass’n, Int’l, 894 F.2d 346, 349-50 (9th Cir.1990) (requiring the conduct to be discriminatory or in bad faith). As to Koire, there is undisputed evidence that the Joint Port Clerks Labor Relations Committee and the Area Labor Relations Committee are processing his grievances in accord with the proper five-year track. Vaca, 386 U.S. at 190, 87 S.Ct. 903. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | [
{
"docid": "22663982",
"title": "",
"text": "Oil Workers International Union, 350 U. S. 892, the Court reversed the dismissal of a- suit which claimed breach of the duty of fair representation despite express reliance by one respondent on exclusive' NLRB jurisdiction. Brief for Resp. Gulf Oil Corp., No. 390, Oct. Term, 1955. See Hughes Tool Co., 147 N. L. R. B. 1573, 1589-1590 (Chairman McCulloch and Member Fanning, dissenting in part). The public interest in effectuating the policies of the federal labor laws, not the wrong done the individual employee, is always the Board’s principal concern in fashioning unfair labor practice remedies. See N. L. R. A. § 10 (c), as amended, 61 Stat. 147, 29 U. S. C. § 160 (e); Phelps Dodge Corp. v. Labor Board, 313 U. S. 177. Thus, the General Counsel will refuse to bring- complaints on behalf of injured employees where the injury complained of is “insubstantial.” See Administrative Decision of the General Counsel, Case No. K-610, Aug. 13, 1956, in CCH N. L. R. B. Decisions, 1956-1957, Transfer Binder, ¶ 54,059. If a grievance and arbitration procedure is included in the contract, but the parties do not intend it to be an exclusive remedy, then a- suit for breach of contract will normally be heard even though such procedures have not been exhausted. See Republic Steel Corp. v. Maddox, 379 U. S. 650, 657-658; 6A Corbin, Contracts § 1436 (1962). Occasionally, the bargaining agreement will give the aggrieved employee, rather than his union, .the right to invoke arbitration. See Retail Clerks v. Lion Dry Goods, Inc., 341 F. 2d 715, cert. denied, 382 U. S. 839. Accord, Hiller v. Liquor Salesmen’s Union, 338 F. 2d 778 (C. A. 2d Cir.); Hardcastle v. Western Greyhound Lines, 303 F. 2d 182 (C. A. 9th Cir.), cert. denied, 371 U. S. 920; Fiore v. Associated Transport, Inc., 255 F. Supp. 596; Bieski v. Eastern Automobile Forwarding Co., 231 F. Supp. 710, aff’d, 354 F. 2d 414 (C. A. 3d Cir.); Ostrofsky v. United Steelworkers, 171 F. Supp. 782, aff’d per curiam, 273 F. 2d 614 (C. A. 4th Cir.), cert. denied, 363"
}
] | [
{
"docid": "14490757",
"title": "",
"text": "5, 8 (1st Cir.1990). We will affirm the grant of summary judgment so long as the record reflects that no genuine issue of material fact exists and that the Union is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). As “the exclusive bargaining representative of the employees, [a][u]nion [has] a statutory duty fairly to represent all of those employees both in its collective bargaining ... and in its enforcement of the resulting collective bargaining agreement.” United Steelworkers of Am., v. Rawson, 495 U.S. 362, 372, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990) (quoting Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)). This duty is called the “duty of fair representation.” BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers of Am., 132 F.3d 824, 830 (1st Cir.1997). A union breaches this duty by acting discriminatorily, in bad faith, or arbitrarily toward a union member. Morales-Vallellanes v. Potter, 339 F.3d 9, 16 (1st Cir.2003). Proof of any of these bad acts will suffice to establish a claim. See id. Emmanuel argues only that the Union acted arbitrarily in handling his grievance. A union acts arbitrarily “if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a wide range of reasonableness as to be irrational.” Miller v. United States Postal Service, 985 F.2d 9, 11-12 (1st Cir.1993) (citation omitted). This standard requires the court to examine objectively the competence of the union’s representation. See Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 369 (7th Cir.2003). But in performing this objective evaluation, the reviewing court must accord the union’s conduct substantial deference. See Air Line Pilots Ass’n Int’l v. O’Neill, 499 U.S. 65, 78, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991); Morales-Vallellanes, 339 F.3d at 16. This standard of review recognizes that unions must have ample latitude to perform their representative functions. Miller, 985 F.2d at 12. Emmanuel challenges the Union’s investigation of his theory of the accident. In particular, he faults the Union for not interviewing the"
},
{
"docid": "2450464",
"title": "",
"text": "181 (8th Cir.1993). Buford then must show that the Postal Service breached the collective bargaining agreement. See id. The district court concluded that Buford failed to demonstrate that the Union breached its duty of fair representation. We review the findings of the district court on the issue of the breach of the duty of fair representation for clear error. See Warren v. International Bhd. of Teamsters, 544 F.2d 334, 341 (8th Cir.1976). We review the district court’s grant of summary judgment de novo and affirm only if the record, viewed in the light most favorable to Buford, shows there is no genuine issue of material fact and that the Postal Service is entitled to judgment as a matter of law. See Smith v. United Parcel Serv., Inc., 96 F.3d 1066, 1068 (8th Cir.1996). A union will be found to have breached its duty of fair representation only when its “conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); see also Smith, 96 F.3d at 1068. Mere negligence, poor judgment, or ineptitude by a union is insufficient to establish a breach of the duty of fair representation. See Smith, 96 F.3d at 1068. The Supreme Court has recognized that “[a]ny substantive examination of a union’s performance ... must be highly deferential, recognizing the wide latitude. that negotiators need for the effective performance of their bargaining responsibilities.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 78, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991). Buford argues that the district court incorrectly analyzed the duty of fair representation. She claims that the district court focused exclusively on the bad faith prong of the Vaca test and failed to also consider whether the Union’s conduct was either discriminatory or arbitrary. While the language of the district court opinion may have focused too narrowly on the bad faith element of the Vaca test, we find that the end result would be the same under the discriminatory or arbitrary prongs. According to Buford, the"
},
{
"docid": "17388365",
"title": "",
"text": "that ALPA is the certified representative for all pilots employed by Alaska Air, and after the merger, the Jet America pilots squarely fit this description. The question, therefore, is whether ALPA breached its duty of fair representation. In general, a union owes a duty of fair representation to all members of the bargaining unit in negotiating an integrated seniority list. See Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). Because the interests of a few individuals often must give way to the interests of the group, courts have given unions wide latitude. If a union’s actions are not arbitrary, capricious, or taken in bad faith, they will not be found to violate the duty of fair representation. See Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). A union may negotiate for and agree to contract provisions involving disparate treatment of distinct classes of workers as long as such conduct is not arbitrary or taken in bad faith. Williams v. Pacific Maritime Ass’n, 617 F.2d 1321, 1330 (9th Cir.1980) (approving disparate treatment of provisional workers and fully registered longshoremen), cert. denied, 449 U.S. 1101, 101 S.Ct. 896, 66 L.Ed.2d 827 (1981); see also In re Pan American-Acquisition of Control of, and Merger with National, CAB Order 82-3-16, Docket 39851 (March 4, 1982) at 4-5 (National employees not entitled to separate representation in negotiations over integrated seniority list because “labor organizations as a matter of course must compromise divergent interests among their members”). Wide latitude, however, does not mean a union may discriminate on the basis of union membership. Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1483 (9th Cir.1985); see also Teamsters Local Union No. 42 v. NLRB, 825 F.2d 608, 612 (1st Cir.1987) (seniority integration system based on date of membership to the union held discriminatory and constituted a duty of fair representation violation). Two uncontested facts support the district court’s finding that ALPA breached its duty of fair representation. First, no Jet"
},
{
"docid": "23518962",
"title": "",
"text": "act and did not constitute bad faith. Moreover, we have held that an error in judgment by the union does not constitute bad faith. Burkevich v. Air Line Pilots Ass’n, 894 F.2d 346, 352 (9th Cir.1990). The Appellants offered no evidence of bad faith or .discriminatory conduct on the part of the union. Therefore, the union’s decision not to pursue the Appellants’ grievance did not constitute a breach of the duty of good faith. Under these circumstances, we eon- elude that the district court did not err in granting summary judgment in favor of the union. Without liability imposed on the union, Appellants’ Section 301 action against the employer must fail as well. In reaching this conclusión, we have determined that no genuine issue of material facts existed in the summary judgment proceedings. The historical or narrative facts were not in dispute. The parties differed only as to the inferences or conclusions to be drawn therefrom. IV. The Appellants contend also that the district court abused its discretion by denying their motion to strike certain portions of Frank Young’s declaration. The district court held that the declaration was admissible under the business records exception to the hearsay rule. The Appellants argue that because Young did not have personal knowledge of the unfair labor charge filed with the NLRB, his declaration is based on hearsay evidence and is, therefore, inadmissible. They argue also that the documents relied upon by Young are hearsay and not admissible. They contend that if the declaration had been properly stricken, the court could not have granted the union’s summary judgment motion. The Appellees assert various bases to justify the admissibility of Young’s declaration. They state that the contested excerpts of the declaration were introduced not to prove the truth of the matter asserted therein but to show his knowledge of the union records, as a background for his decision not to pursue the Appellants’ grievance. See Kunz v. Utah Power & Light Co., 913 F.2d 599, 605 (9th Cir.1990) (holding press releases admissible because they were not offered to prove their truth but to show that"
},
{
"docid": "22339741",
"title": "",
"text": "avoid arbitrary conduct.” DelCostello, 462 U.S. at 164 n. 14, 103 S.Ct. at 2290 n. 14 (quoting Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967)). A union breaches its duty of fair representation only when its conduct toward a member of the collective bargaining unit is “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916. The duty is designed to ensure that unions represent fairly the interests of all of their members without exercising hostility or bad faith toward any. It stands “as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” Id. at 182, 87 S.Ct. at 912. The Supreme Court has long recognized that unions must retain wide discretion to act in what they perceive to be their members’ best interests. See, e.g., Ford Motor Co. v. Huffman, 345 U.S. 330, 337-38, 73 S.Ct. 681, 685-86, 97 L.Ed. 1048 (1953). To that end, we have “stressed the importance of preserving union discretion by narrowly construing the unfair representation doctrine.” Johnson v. United States Postal Service, 756 F.2d 1461, 1465 (9th Cir.1985, as amended May 3, 1985) (citation omitted). We have emphasized that, because a union balances many collective and individual interests in deciding whether and to what extent it will pursue a particular grievance, courts should “accord substantial deference” to a union’s decisions regarding such matters. Id. at 1466. A union’s representation of its members “need not be error free.” Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1482 (9th Cir.1985). We have concluded repeatedly that mere negligent conduct on the part of a union does not constitute a breach of the union’s duty of fair representation. See, e.g., id; Clayton v. Republic Airlines, Inc., 716 F.2d 729, 732 (9th Cir.1983); Singer v. Flying Tiger Line, Inc., 652 F.2d 1349, 1354 (9th Cir. 1981); Stephens v. Postmaster General, 623 F.2d 594, 596 (9th Cir.1980). Peterson recognizes and does not challenge the established principle that a union’s negligence cannot give rise"
},
{
"docid": "500182",
"title": "",
"text": "district court. Summary judgment is granted if there is no genuine issue of material fact for trial. Considine v. Newspaper Agency Corp., 43 F.3d 1349, 1356 (10th Cir.1994). A party who moves for summary judgment under Rule 56 “is not required to provide evidence negating an opponent’s claim. Rather, the burden is on the nonmovant, who ‘must present affirmative evidence in order to defeat a properly supported motion for summary judgment.’” Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir.1992) (citation omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514-15, 91 L.Ed.2d 202 (1986)). B. The Duty of Fair Representation and Its “Wide Range of Reasonableness” Mr. Young’s claim is a “hybrid” federal labor claim. In order to prevail Mr. Young must prove (1) that the Union breached its duty of fair representation and (2) that UAW-LETC discharged Mr. Young in violation of its collective bargaining agreement with the Union. See Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 564, 110 S.Ct. 1339, 1344, 108 L.Ed.2d 519 (1990); Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 530-31 (10th Cir.1992). The sole issue raised by UAW-LETC’s motion for summary judgment is whether the Union breached its duty of fair representation under federal labor law. As both parties correctly state, “[a] union breaches its duty of fair representation if its conduct toward a member is ‘arbitrary, discriminatory, or in bad faith.’” Aguinaga v. United Food & Commercial Workers Int’l Union, 993 F.2d 1463, 1470 (10th Cir.1993) (quoting Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967)), cert. denied, 510 U.S. 1072, 114 S.Ct. 880, 127 L.Ed.2d 75 (1994). Mr. Young argues that the Union’s conduct was arbitrary. “[A] union may not arbi trarily ignore a meritorious grievance or process it in perfunctory fashion....” Vaca, 386 U.S. at 191, 87 S.Ct. at 917. The Supreme Court recently stated that “a union’s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions,"
},
{
"docid": "16118289",
"title": "",
"text": "bylaws. We agree. See Washington v. Laborer’s Int’l Union, 792 F.2d 94, 95-96 (8th Cir.1985) (“We believe that the Union's interpretation of its constitution is a reasonable one, and thus we will not substitute our judgment for that of the Union as to the meaning of its constitution.”). In any event, it is apparent from the record that there was no discrimination on this vote, as no yeast workers were excluded from voting, nor does the record demonstrate that any member of the class was deprived of his or her right to cast a meaningful vote. “The complaining union members here have not been discriminated against in any way and have been denied no privilege or right to vote ... which the Union has granted to others.” Calhoon v. Harvey, 379 U.S. 134, 139, 85 S.Ct. 292, 295, 13 L.Ed.2d 190 (1964); see also Nienaber v. Ohio Valley Carpenters Dist. Council, 652 F.2d 1284, 1286 (6th Cir.1981) (vote taken in violation of union constitution did not violate section 101(a)(1) where “the variance or irregularity [did not result] in discriminatory deprivation of an individual’s right to east a meaningful vote”). We also conclude that judgment notwithstanding the verdict should have been entered in favor of Local 6 on the class’s claim that the Local breached its duty of fair representation by signing the June 30, 1987, Memorandum of Understanding. “A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967); see also Air Line Pilots Ass’n v. O’Neill, — U.S. -, 111 S.Ct. 1127, 1130, 113 L.Ed.2d 51 (1991) (Vaca standard applies to all union activity). The record is devoid of evidence that Local 6 discriminated against the yeast workers in favor of the brewery workers or that the Local acted in bad faith. All of the evidence demonstrates that Local 6 used its best efforts to negotiate with the Company to acquire transfer rights and dovetailed"
},
{
"docid": "15258196",
"title": "",
"text": "heart of the appeal — whether, on the facts before us, NHI was entitled to summary judgment. As we noted at the outset, the appellants have filed hybrid section 301/fair representation suits claiming that NHI breached the collective bargaining agreement and that GCIU breached the duty of fair representation it owes to its members. See Reed v. United Transp. Union, 488 U.S. 319, 328, 109 S.Ct. 621, 627, 102 L.Ed.2d 665 (1989); McLeod v. Arrow Marine Transp., Inc., 258 F.3d 608, 612-13 (7th Cir.2001). In order for a plaintiff to prevail in such an action, he must have a meritorious claim against both the union and the employer; the claims are interlocking in the sense that neither is viable if the other fails. Crider v. Spectrulite Consortium, Inc., 130 F.3d 1238, 1241 (7th Cir.1997). Thus it is that NHI sought and obtained summary judgment on the ground that GCIU did not breach the duty of fair representation that it owed to Neal and Brandon as union members — without a valid claim for breach of the duty of fair representation, the plaintiffs cannot proceed against NHI. Id. at 1241, 1243; McKelvin v. E.J. Brach Corp., 124 F.3d 864, 869 (7th Cir.1997). We must therefore decide whether the facts, viewed favorably to Neal and Brandon, would sup port a finding that GCIU did breach the duty of fair representation. See id. at 868. We conclude that they would not. A union breaches the duty of fair representation only if its actions are arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). Each of these possibilities must be considered separately in determining whether or not a breach has been established. See Ooley v. Schwitzer Div., Household Mfg. Inc., 961 F.2d 1293, 1302 (7th Cir.1992), discussing Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991); see also, e.g., Filippo v. Northern Indiana Public Serv. Corp., supra, 141 F.3d at 748-49; Crider, 130 F.3d at 1243. We may quickly dispose of the latter two"
},
{
"docid": "2390056",
"title": "",
"text": "v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 367, 11 L.Ed.2d 370 (1964); Nedd v. United Mine Workers, 400 F.2d 103, 105-06 (3d Cir. 1968); Gainey v. Brotherhood of Ry. and S.S. Clerks, 313 F.2d 318 (3d Cir. 1963). This duty arises out of the union-employee relationship. Nedd v. United Mine Workers, 400 F.2d at 106, and the Labor Management Relations Act, 29 U.S.C. §§ 158-159 (1976), which creates and defines that relationship. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-64, 96 S.Ct. 1048, 1055-56, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967); Deboles v. Trans World Airlines, Inc., 552 F.2d 1005, 1013-14 (3d Cir.), cert. denied, 434 U.S. 837, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977); Augspurger v. Brotherhood of Locomotive Eng’rs, 510 F.2d 853, 857-58 (8th Cir. 1975); Smith v. Local 25, Sheet Metal Workers Int’l Ass’n, 500 F.2d 741, 746 (5th Cir. 1974). To violate the duty, however, it is necessary that the union act with a bad faith motive. Augspurger v. Brotherhood of Locomotive Eng’rs, 510 F.2d 853, 859 (8th Cir. 1975); Balowski v. United Auto. Workers, 372 F.2d 829, 835 (6th Cir. 1967); Gainey v. Brotherhood of Ry. and S.S. Clerks, 313 F.2d 318, 323 (3d Cir. 1963); Hardcastle v. Western Greyhound Lines, 303 F.2d 182, 185 (9th Cir.), cert. denied, 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed.2d 229 (1962). “A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916. In order to state a claim for breach of this duty, it is essential that plaintiffs allege a bad faith motive on the part of the union. Gainey v. Brotherhood of Ry. and S.S. Clerks, 313 F.2d 318, 323 (3d Cir. 1963); accord, Anderson v. United Transp. Union, 557 F.2d 165, 168 (8th"
},
{
"docid": "2390057",
"title": "",
"text": "1974). To violate the duty, however, it is necessary that the union act with a bad faith motive. Augspurger v. Brotherhood of Locomotive Eng’rs, 510 F.2d 853, 859 (8th Cir. 1975); Balowski v. United Auto. Workers, 372 F.2d 829, 835 (6th Cir. 1967); Gainey v. Brotherhood of Ry. and S.S. Clerks, 313 F.2d 318, 323 (3d Cir. 1963); Hardcastle v. Western Greyhound Lines, 303 F.2d 182, 185 (9th Cir.), cert. denied, 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed.2d 229 (1962). “A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. at 190, 87 S.Ct. at 916. In order to state a claim for breach of this duty, it is essential that plaintiffs allege a bad faith motive on the part of the union. Gainey v. Brotherhood of Ry. and S.S. Clerks, 313 F.2d 318, 323 (3d Cir. 1963); accord, Anderson v. United Transp. Union, 557 F.2d 165, 168 (8th Cir. 1977); Balowski v. United Auto. Workers, 372 F.2d 829, 835 (6th Cir. 1967); Hardcastle v. Western Greyhound Lines, 303 F.2d 182, 186 (9th Cir.), cert. denied, 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed.2d 229 (1962). The instant complaint contains no such allegation. A mere allegation that a grievance “should have been” processed through a grievance procedure does not satisfy this requirement. See generally Vaca v. Sipes, 386 U.S. at 191, 87 S.Ct. at 917. Accordingly, we hold that the second count of Boeing Vertol’s complaint against the union does not state a federal cause of action for breach of the union’s duty of fair representation. 14. Nor do we believe that the third party complaint alleges a cause of action under section 301(a). Section 301(a) does not grant jurisdiction over all disputes between unions and employees. This court has repeatedly stated that section 301(a) provides jurisdiction only over suits for violation of contracts between an employer and a labor organization. See Leskiw v. International Bhd. of Electrical Workers, 464 F.2d 721, 722-23 (3d"
},
{
"docid": "9340383",
"title": "",
"text": "Gaj v. United States Postal Service, 800 F.2d 64, 68-69 (3rd Cir.1986) (the language and history of § 1001 does not evidence an intent to create a private cause of action). II. Breach of Contract Under Section 1208(b) Section 1208(b) of the Postal Reorganization Act gives federal courts jurisdiction over actions brought “for violation of contracts between the Postal Service and a labor organization representing Postal Service employees_” 39 U.S.C. § 1208(b). The Kaiser court outlined the requirements that a Postal employee must demonstrate to maintain a breach of contract claim: To recover from an employer for a violation of a collective bargaining agreement, an employee must first show that his union breached its duty of fair representation in handling his grievance. Bowen v. United States Postal Service, 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983). To establish that the union breached its duty of fair representation, the employee “must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.” Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965) (emphasis in original). This Court has stated that “[i]t is axiomatic that an aggrieved employee must exhaust any exclusive grievance and arbitration procedure created in a collective bargaining agreement prior to bringing a ... suit against the employer.” Poole v. Budd Co., 706 F.2d 181, 183 (6th Cir.1983). 908 F.2d at 49. An exception to the principle of exhaustion will lie if the union’s handling of the grievance is “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967); see also Clayton v. International Union, U.A.W., 451 U.S. 679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981); Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1400 n. 7 (9th Cir.1988); Galindo v. Stoody Co., 793 F.2d 1502, 1513 (9th Cir.1986). When the Volz Award was negotiated in 1984, Stupy was not a member of the bargaining unit and the NRLCA owed him no duty. The NRLCA does, however, have a duty to represent"
},
{
"docid": "18157348",
"title": "",
"text": "AA. Martin did not appeal the district court’s grant of summary judgment to Harmon. II. Discussion We review the district court’s grant of summary judgment to TWU and AA de novo. Smith v. United Parcel Service, Inc., 96 F.3d 1066, 1068 (8th Cir.1996). Viewing the record in the light most favorable to Martin, we will affirm if there is no genuine issue of material fact and TWU and AA are entitled to judgment as a matter of law. Id. A. Breach of Duty of Fair Representation Martin initially claims that TWU breached its duty under the RLA to fairly represent him. He argues that the record, when properly viewed in a light most favorable to him, shows that his grievance was meritorious, that TWU’s decision not to submit his case to AA’s System Board of Adjustment was arbitrary, and that TWU handled his discharge appeal hearing and grievance in a perfunctory manner. We do not agree. A union breaches its duty to fairly represent one of its members when its conduct is arbitrary, discriminatory, or in bad faith. Id. (citing Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)). A breach of the duty of fair representation is not established merely by proof that the underlying grievance was meritorious. Vaca, 386 U.S. at 195, 87 S.Ct. 903. Rather, a breach occurs when a union makes arbitrary decisions as to the merits of an employee’s grievance. Id. at 194, 87 S.Ct. 903. Arbitrary conduct is “behavior [that] is so far outside a ‘wide range of reasonableness’ as to be irrational.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991) (citation omitted) (quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 97 L.Ed. 1048 (1953)). Furthermore, arbitrary decision-making as to the merits of an employee’s grievance may, in some circumstances, be shown where the union ignores the employee’s complaint or processes the employee’s grievance in a perfunctory manner. See Vaca, 386 U.S. at 194, 87 S.Ct. 903. A union acts in a perfunctory manner"
},
{
"docid": "7249007",
"title": "",
"text": "against the • employer must prove both that the employer violated the collective bargaining agreement and that the union breached its duty of fair representation, assuming the employee has exhausted his contractual grievance remedies. Vaca v. Sipes, 386 U.S. 171,186-87, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Waldron v. Boeing Co., 388 F.3d 591, 594 (8th Cir.2004). A union breaches its duty of fair representation only when its conduct toward a member is “arbitrary, discriminatory, or in bad faith,” Vaca, 386 U.S. at 190, 87 S.Ct. 903; Buford v. Runyon, 160 F.3d 1199, 1202 (8th Cir.1998), or so unreasonable as to be “irrational.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 78, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991). “Mere negligence, poor judgment, or ineptitude by a union is insufficient to establish a breach of the duty of fair representation.” Buford, 160 F.3d at 1202. We need not decide whether UPS violated the collective bargaining agreement by terminating Jones or Clark out of a retaliatory or discriminatory motive, because plaintiffs on this record have not provided sufficient evidence to generate genuine issues of fact that Local 41 breached its duties of fair representation. Plaintiffs alleged that Local 41’s investigations of each discharge were so inadequate as to “actually taint[] the grievance process.” Yet at Clark’s Mo-Kan panel hearing, Local 41 business agent Tóplikar testified on Clark’s behalf that the radio Clark was given did not work properly. Agent Thompson argued that Clark responded to all spills of which he was made aware, and that management “twisted” Clark’s responses in his post-shift meeting into insubordination. Clark also testified on his own behalf. Similarly, agent Long represented Jones at his Mo-Kan hearing after several phone conversations and a thirty-minute meeting between the two the morning of the hearing. Prior to the hearing, Long spoke with three drivers whose testimony Jones considered instrumental to his success, and Long researched a case Jones thought may have had precedential value. Long presented the statement of a driver who had been given the option of going home when his route was cut, and Long"
},
{
"docid": "15131524",
"title": "",
"text": "Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The judge is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial is presented when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505. B. Breach of the union’s duty of fair representation 1. Duty of fair representation As stated by Justice Byron White in Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), the leading ease in this area of the law, a union’s duty of fair representation includes “a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” The duty extends to all of the union’s represented employees • in all contexts of union activity, including contract negotiation and grievance processing. See Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 77, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991) (re-affirming the standard set forth in Vaca and extending it to the union in its negotiating capacity). There may be instances, however, when a union’s decision favors some members over others, and the total satisfaction of all of the union members is not to be expected. See Balowski v. UAW, 372 F.2d 829, 834 (6th Cir.1967). Furthermore, even if an employee shows that the union breached its duty of fair representation, the employee must also prove that the union’s acts “tainted the grievance procedure such that the outcome was more than likely affected by the Union’s breach.” Dushaw v. Roadway Express, Inc., 66 F.3d 129, 132 (6th Cir.1995). 2. Williams’s claims of breach Williams cites numerous incidents which he claims constitute a breach of the union’s duty of fair representation, particularly relating to the negotiation of the rider and the processing of"
},
{
"docid": "7249006",
"title": "",
"text": "plaintiffs in their wrongful termination grievances. Additionally, Jones alleges that Local 41 failed to represent adequately his claims that UPS violated the agreement by routinely cutting his bid route, and by using sleeper teams to haul packages that Jones otherwise would have been responsible to carry. “Section 301 contemplates suits by and against individual employees as well as between unions and employers,” and “encompass[es] those seeking to vindicate ‘uniquely personal’ rights of employees such as wages, hours, overtime pay, and wrongful discharge.” Hines, 424 U.S. at 562, 96 S.Ct. 1048. As the exclusive bargaining agent in the negotiation and administration of a collective bargaining agreement, the union assumes the responsibility and duty of fair representation for all of its members. Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). Section 301 thus permits an action against the union for breach of its duty of fair representation, and an action against the employer for breach of the collective bargaining agreement. A party seeking to recover on a “hybrid” § 301 claim against the • employer must prove both that the employer violated the collective bargaining agreement and that the union breached its duty of fair representation, assuming the employee has exhausted his contractual grievance remedies. Vaca v. Sipes, 386 U.S. 171,186-87, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Waldron v. Boeing Co., 388 F.3d 591, 594 (8th Cir.2004). A union breaches its duty of fair representation only when its conduct toward a member is “arbitrary, discriminatory, or in bad faith,” Vaca, 386 U.S. at 190, 87 S.Ct. 903; Buford v. Runyon, 160 F.3d 1199, 1202 (8th Cir.1998), or so unreasonable as to be “irrational.” Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 78, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991). “Mere negligence, poor judgment, or ineptitude by a union is insufficient to establish a breach of the duty of fair representation.” Buford, 160 F.3d at 1202. We need not decide whether UPS violated the collective bargaining agreement by terminating Jones or Clark out of a retaliatory or discriminatory motive, because plaintiffs on this record"
},
{
"docid": "3151978",
"title": "",
"text": "Act, see 29 U.S.C. § 411, we cannot understand how appellants’ claim fits within any of them. “The provisions of the L.M.R.D.A. were not intended by Congress to constitute an invitation to the courts to intervene at will in the internal affairs of unions.” Gurton v. Arons, 2nd Cir. 1964, 339 F.2d 371, 375. The Act expresses the congressional judgment that in certain specific areas the interests of individual members need special protection against the danger of overreaching by entrenched union leadership. Rota v. Brotherhood of Ry., Airline & S.S. Clerks, 7th Cir. 1973, 489 F.2d 998, 1003, cert. denied, 414 U.S. 1144, 94 S.Ct. 896, 39 L.Ed.2d 99. Expulsion for failure to pay dues is not such an area. See Lewis v. American Fed. of State, Cty. & Mun. Emp., 3rd Cir. 1969, 407 F.2d 1185, 1192; Williams v. Int’l. Typographical Union, 10th Cir. 1970, 423 F.2d 1295, 1297. Appellants have alternatively contended that the Union’s refusal to reinstate them constitutes yet another breach of its duty of fair representation. Having viewed this contention and the record with greatest judicial imagination, we fail to see how the Union’s actions could constitute, a breach of the duty to represent a member of the bargaining unit fairly in dealings with the employer. A DFR breach occurs only when a union’s dealings with the employer, ostensibly on behalf of a member of the bargaining unit, show that the union’s conduct toward the member has been arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, supra, 386 U.S. at 190, 87 S.Ct. at 916; Amalgamated Ass’n of St., E. R. & M.C. Emp. v. Lockridge, supra, 403 U.S. at 301, 91 S.Ct. at 1925. Appellants have not suggested that their failure to pay dues is not a proper basis for suspension or expulsion from membership. Nor do they contend that the duty of fair representation imposes upon a union the duty to open wide its doors to anyone. See Moynahan v. Pari-Mutuel Employees Guild of Cal., Loc. 280, 9th Cir. 1963, 317 F.2d 209, 211. Moreover, the appellants’ claim does not demonstrate any"
},
{
"docid": "23518952",
"title": "",
"text": "108 S.Ct. 698, 98 L.Ed.2d 650 (1988). We review the district court’s decision to' admit evidence under exceptions to the hearsay rule for an abuse of discretion. United States v. Bland, 961 F.2d 123, 126 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 170, 121 L.Ed.2d 117 (1992). I. A union breaches the statutory duty of fair representation if it ignores a meritorious grievance or processes it in a perfunctory manner. Vaca v. Sipes, 386 U.S. 171, 191, 87 S.Ct. 903, 917, 17 L.Ed.2d 842 (1967). The Appellants argue that the union should be held accountable for its failure to make even a minimal investigation into their grievance. They rely principally on our decision in Tenorio v. Nat’l Labor Relations Bd., 680 F.2d 598, 601 (9th Cir.1982) (“To comply with its duty, a union must conduct some minimal investigation of grievances brought to its attention.”). See also Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1274 (9th Cir.1983); Gregg v. Chauffers, Teamsters & Helpers Union Local 150, 699 F.2d 1015, 1016 (9th Cir.1983). The Appellees respond that there are no genuine issues of fact and that the district court properly determined that Local 404 did not breach its duty of fair representation. They rely on Frank Young’s declaration, which established that: Young was president of Local 404; Local 404’s predecessor was Local 522; the records of the union showed that five years prior to the Appellants’ grievance, Local 522 had filed an unfair labor practice charge against Moore on the basis of disparate benefits between union and nonunion employees; the NLRB rejected the charge, concluding that different benefits did not constitute unlawful discrimination; and Young was aware of these records when he was presented with the Appellants’ grievance. In addition, the union indicated that it was aware of other situations in which fringe benefits paid to bargaining unit employees were different than those provided to non-bargaining unit employees. For example, in his declaration, Young notes that when Moore changed from Blue Cross health insurance to Aetna, non-bargaining unit employees were required to pay a contribution to the Aetna program"
},
{
"docid": "23518961",
"title": "",
"text": "we stated: If a union provides an explanation for having ignored a particularly strong argument during a grievance procedure that is based on reasoning, we will not question whether the reasoning was faulty or not. In Peters, the union provided no explanation for having ignored a union member’s argument, and we concluded that there was insufficient evidence that the union deliberated the issue at all. Id. at 541. We noted that “[h]ad the union explained its actions as the product of judgment, whether sound or flawed, we might very well have been forced to conclude that Peters on balance failed to ' prove the existence of a material factual issue.” Id. In the case before us, however, the union did provide an explanation: It relied on a prior decision of the NLRB that different benefits for union and non-union members alone was insufficient proof of an employer’s discriminatory motive. In Salinas v. Milne Truck Lines, Inc., 846 F.2d 568, 569-70 (9th Cir.1988), we held that a local union’s reliance on precedent was not a discriminatory act and did not constitute bad faith. Moreover, we have held that an error in judgment by the union does not constitute bad faith. Burkevich v. Air Line Pilots Ass’n, 894 F.2d 346, 352 (9th Cir.1990). The Appellants offered no evidence of bad faith or .discriminatory conduct on the part of the union. Therefore, the union’s decision not to pursue the Appellants’ grievance did not constitute a breach of the duty of good faith. Under these circumstances, we eon- elude that the district court did not err in granting summary judgment in favor of the union. Without liability imposed on the union, Appellants’ Section 301 action against the employer must fail as well. In reaching this conclusión, we have determined that no genuine issue of material facts existed in the summary judgment proceedings. The historical or narrative facts were not in dispute. The parties differed only as to the inferences or conclusions to be drawn therefrom. IV. The Appellants contend also that the district court abused its discretion by denying their motion to strike certain"
},
{
"docid": "14022396",
"title": "",
"text": "Beck’s April warning and her subsequent July termination. The district court determined that Local 99’s failure to file a grievance contesting the April warning constituted an arbitrary, discriminatory, and bad faith failure to perform a ministerial action. The district court also concluded that Local 99’s decision not to arbitrate Beck’s July termination was the result of discrimination and bad faith. As to both these claims, the district court awarded Beck $16,304 in lost wages, $125,000 in compensatory damages for emotional distress, $50,000 in punitive damages, and attorney’s fees and costs, not yet fixed. Local 99 timely appealed. DISCUSSION I We first turn to the district court’s holding that Local 99 breached its duty of fair representation in handling Beck’s grievances. “The duty of fair representation is a judicially established rule imposed on labor organizations because of their status as the exclusive bargaining representative for all of the employees in a given bargaining unit.” Peterson v. Kennedy, 771 F.2d 1244, 1253 (9th Cir.1985). The duty of fair representation exists because a single labor organization represents the interests of all employees within a unit, and “if individual employees are not to be deprived of all effective means of protecting their own interests, it must be the duty of the representative organization to ‘serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.’ ” DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 164 n. 14, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) (quoting Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967)). The burden of proving a breach of the duty of fair representation is on the plaintiff. Vaca, 386 U.S. at 193, 87 S.Ct. 903; Slevira v. W. Sugar Co., 200 F.3d 1218, 1221 (9th Cir.2000) (citing Vaca). A union breaches its duty of fair representation 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. 903; see also Air Line Pilots Ass’n. Int’l"
},
{
"docid": "23518955",
"title": "",
"text": "with the recognition that Appellants’ complaint asserted claims against both the union and the company. The complaint against the union is predicated on the “statutory duty of fair representation.” See Vaca, 386 U.S. at 177, 87 S.Ct. at 910. The duty of fair representation is inferred from the union’s exclusive authority under the National Labor Relations Act, 29 U.S.C. § 159(a), to represent all employees in a bargaining unit and “to act fairly when dealing with an employer on behalf of a member.” Moore v. Local Union 569 of the Int’l Bhd. of Elec. Workers, 989 F.2d 1534, 1541 (9th Cir.1993), cert. denied — U.S. -, 114 S.Ct. 1066, 127 L.Ed.2d 385 (1994). The complaint against Moore, the employer, is based on Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), which authorizes suits between employers and labor organizations for contract violations. The parties agree that the action against Moore can succeed only if “the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.” Vaco, 386 U.S. at 186, 87 S.Ct. at 914; see also Johnson v. United States Postal Serv., 756 F.2d 1461, 1467 (9th Cir.1985). Our inquiry, therefore, is limited to whether Local 404 breached its duty of fair representation owed to the Appellants. In Vaca v. Sipes, 386 U.S. at 177, 87 S.Ct. at 910, the Court defined the duty of fair representation: [T]he exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Regarding the scope of the duty, the Court stated: Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provisions of the applicable collective bargaining agreement. Id. at 191, 87"
}
] |
455825 | a “contentious civil rights action against the City of Somerville ... and eight of its police officers.” Id. at 188. The case was tried to a jury for twelve days. Id. at 190. After seven days of deliberations, the jury returned a verdict, but post-trial motions and “wrangling” occupied the parties and court until the case ultimately settled months later during a conference with the court. Id. at 189-90. • Connolly v. Harrelson, 33 F.Supp.2d 92 (D.Mass.1999). This Court awarded plaintiffs $79,949.41 in fees after a civil rights trial. Id. at 99. • Wilson v. McClure, 135 F.Supp.2d 66 (D.Mass.2001). This court awarded plaintiffs $58,195.41 in fees after the trial of the plaintiffs’ claims of racial discrimination. Id. at 74. • REDACTED vacated in part, 322 F.3d 1 (1st Cir.2003). This Court awarded $81,375.00 in fees, a holding that was not disturbed on appeal, in a Massachusetts civil rights matter that was tried to a jury and resulted in a jury verdict of $4,850,000.00. Id. at 98. After the verdict, defendants filed motions for new trial, remittitur, and enforcement of an earlier agreement for judgment. Id. Def.’s Discrim. Opp’n at 11-12. In light of the straightforward nature of the claims in this matter, the limited procedural history, and the fact that the case settled before empanelment of the jury, this Court finds that the hours worked on this case were excessive and that a substantial reduction is warranted. As with the FLSA case, the | [
{
"docid": "8975958",
"title": "",
"text": "terror they had endured in Mansfield. The case went to trial in this Court and a jury awarded the Davignon family collectively $4,850,000.00. This aggregate award includes $350,000.00 to Neal Davig-non as a result of an assault by Karl Clemmey, and $1,000,000.00 to Neal Davig-non, $1,000,000.00 to Patricia Kelley, $1,250,000.00 to Amanda Davignon, and $1,250,000.00 to Chelsea Davignon against Karl and Dan Clemmey jointly and severally for intentional infliction of emotional distress and violation of the Massachusetts Civil Rights Act. After the jury verdict, the plaintiffs petitioned for attorneys’ fees and costs, and the defendants brought a motion seeking judgment notwithstanding the verdict, a new trial, remittitur, and enforcement of the earlier agreement for judgment in Housing Court. The Court held a hearing on September 13, 2001, and ruled on some of these issues from the bench. This memorandum sets forth the reasoning behind those rulings and addresses the issues left unresolved at the hearing. II. DEFENDANTS’ POST-TRIAL MOTIONS A. Motion for Judgment Notwithstanding the Verdict or for a New Trial This motion simply reiterates various procedural and evidentiary issues that the defendants raised at trial, which the Court thoroughly considered at that time. It adds nothing new. For this reason, the Court denied the motion from the bench. B. Motion for Remittitur So central is the role of the jury to the proper award of compensatory damages, Ciulla v. Rigny, 89 F.Supp.2d 97, 100-03 (D.Mass.2000), that motions for remittitur after a jury verdict ought rarely, if ever, be granted. It is true, however, that this is the largest civil injury tort verdict ever recorded in this session of the United States District Court. From this fact defense counsel argues, referencing other cases with other fact patterns, that this Court ought exercise the power granted to it by Federal Rule of Civil Procedure 59 and unilaterally order a reduction in the verdict or a new trial. The Court notes, however, that the perceived abuse of the judicial remittitur power is coming under increased critical scrutiny by Congress, see S. Rep. 107-42, at 118 (2001) (criticizing judicial “limits on jury awards”"
}
] | [
{
"docid": "23297685",
"title": "",
"text": "(R., Appendix to Appellants’ Answer Brief, exh. 1 at 69). Plaintiffs filed their Complaint on August 23, 1988. After denying the parties’ cross-motions for summary judgment on the FLSA, Kansas labor act and implied contract claims by a memorandum and order entered October 4, 1990, 1990 WL 186280, the court set the question of liability for jury trial. On October 22, 1990, the jury returned its verdict, finding the City liable on the mealtime claim. Thereafter, the parties briefed the correlating damages issue. In a memorandum and order of January 4, 1991, the court awarded damages, attorneys’ fees and costs to Plaintiffs and denied Defendant’s motion for new trial, to amend or vacate the verdict, or for judgment notwithstanding the verdict. La-mon v. City of Shawnee, 754 F.Supp. 1518 (D.Kan.1991). The court reasoned that the jury’s finding of a 28-day work period partially released the City from paying overtime compensation. In short, Plaintiffs were entitled to be paid no more than their regular wage for hours worked over 160 and up through 171 hours and to be paid overtime for hours worked above 171 hours. Because the Plaintiffs took no more than ten hours in meal periods within a 28-day period, the court determined that the compensation due, however, would be calculated at the regular hourly rate. Id. Consistent therewith, the court awarded Plaintiffs $90,614.37 in actual damages and an equal amount in liquidated damages, plus attorneys’ fees and costs. Id. Finally, by memorandum and order of May 10, 1991, 1991 WL 105211, the court denied Defendant’s motion to alter or amend the damages, fees and costs award. II. DISCUSSION With the passage of FLSA in 1938, Congress established a comprehensive remedial scheme requiring a minimum wage and limiting the maximum number of hours worked, absent payment of an overtime wage for all hours worked in excess of the specified maximum number. At its inception, FLSA did not apply to state and local governments. In 1974, Congress extended FLSA’s reach to virtually all state and local government employees. FLSA Amendments of 1974, 29 U.S.C. § 203(d) and (x). See Garcia"
},
{
"docid": "14749329",
"title": "",
"text": "taken as some emerging Massachusetts standard”); Connolly v. Harrelson, 33 F.Supp.2d 92, 95-96 (D.Mass.) (approving hourly rate of $200 in civil rights case for attorney with twenty-five years of experience), aff'd, 201 F.3d 426, 1999 WL 699906 (1st Cir.1999); McLaughlin ex rel. McLaughlin v. Boston Sch. Comm., 976 F.Supp. 53, 62 (D.Mass.1997) (Garrity, J.) (holding $200 hourly rate reasonable in civil rights action). Moreover, this is the highest amount that any other court has awarded Schwartz in previous litigation. Schwartz Aff. ¶ 13 (describing court awarded hourly rates ranging from $200 in 1987 to $250 in 1996). Thus, the Court awards Schwartz at a $250 hourly rate. With respect to Scheckner and Massey, this Court has little information from which to determine hourly rates. Within the law firm of Rodgers, Powers & Schwartz, Scheckner bills at $190 per hour and Massey bills at $75 per hour. Id. ¶¶ 14-15. Moreover, the information provided by Schwartz informs the Court that among Boston firms, the associate hourly rate ranges from $75 per hour to $310 per hour. Id. Ex. B. The requested rates of $190 and $70 per hour appear too steep for the services of a third-year associate and a law student. Indeed, other courts within this district have awarded lower fees to similarly qualified individuals. E.g., Alfonso, 66 F.Supp.2d at 197 (awarding hourly rate of $130 to associate); Guckenberger, 8 F.Supp.2d at 107-08 (approving hourly rate of $140 for junior attorney and hourly rate of $60 for law clerks and paralegals); Murray v. Shaw Indus., Inc., 990 F.Supp. 46, 48 (D.Mass.1997) (approving hourly rate of $125 to $140 for associate counsel). Accordingly, this Court reduces Scheck-ner’s rate to $120 and Massey’s rate to $60 per hour. The Court also reduces the attorneys’ hourly rates based on the type of work performed. “It has become established practice in this Circuit to distinguish between ‘core’ and ‘non-core’ work when determining attorneys’ fees awards.” Connolly, 33 F.Supp.2d at 96 (citing Brewster v. Dukakis, 3 F.3d 488, 492 n. 4 [1st Cir.1993]). “[Cjore work includes legal research, writing of legal documents, court appearances, negotiations"
},
{
"docid": "19264605",
"title": "",
"text": "makes the hours reasonably expended a satisfactory basis for making a fee award?” We review a district court’s application of that step-by-step analysis for an abuse of discretion (id. at 531-32). Jordan first argues that the district court incorrectly determined the “lodestar” figure because it excluded 64 of the 68 hours during which his counsel was in attendance at the courthouse waiting for the jury verdict. Jordan seeks to analogize his case to Roberts v. Interstate Distrib. Co., 242 F.Supp.2d 850, 860 (D.Or. 2002), which allowed prevailing counsel to include in its hours calculation 3.5 hours for “jury watch” (waiting for the jury verdict). But in Roberts the parties’ counsel were operating under an order that required them to be within 15 minutes of the courthouse while the jury was deliberating (id.). Because plaintiffs counsel worked in a different city, that prevented her from returning to her office and limited the type of work she could perform for other clients during the deliberations (id.). In contrast, Jordan’s counsel offices in Akron, where the trial was held. There was no court mandate for counsel to stay at the courthouse. Indeed, the district court suggested the opposite in its fees opinion (J.A.F. 187). There is also a great disparity in the magnitude of the claim: Roberts involved a limited 3.5 hours for “jury watch,” while Jordan’s counsel requested 68 hours (4 of which were granted). Simply put, there was no abuse of discretion under the circumstances (see, e.g., Alfonso v. Aufiero, 66 F.Supp.2d 183, 193 (D.Mass.1999)). Second, Jordan contends that the district court erred in further reducing the fee award by 40% across the board. In that respect the district court stated it was reducing the award based on Jordan’s failure to prevail on “the majority of his accusations made against his former employer” (J.A.F. 186). Although the opinion is not entirely clear on that score, it appears that the court considered Jordan’s “failed” accusations to include a supposed claim for promotions, as well as claims for racial discrimination, racial harassment with a tangible employment action and racial harassment by a co-worker."
},
{
"docid": "14763504",
"title": "",
"text": "F.3d 94, 98 (2d Cir.1997), the Court may turn to “considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the ‘results obtained.’” Hensley, 461 U.S. at 434, 103 S.Ct. 1933 (citation omitted). However, these “factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate.” Id. at 434 n. 9, 103 S.Ct. 1933; see also Greenbaum v. Svenska Handelsbanken, N.Y., 998 F.Supp. 301, 303-04 (S.D.N.Y.1998) (quoting Hensley). Because several of the challenges defendants raise to the fee application address the reasonableness of plaintiffs’ counsel’s rates and the number of hours expended on this case, the Court will first consider whether defendants’ claims should have any effect on the Court’s calculation of the lodestar amount. B. Relationship Between Outcome and Award Defendants suggest that a reduction in the lodestar amount is warranted for two reasons: first, the amount of damages awarded at trial was significantly smaller than the amount requested in fees; and second, many of plaintiffs’ claims were dismissed in the Court’s Summary Judgment Order. The Court will consider these claims in turn. Defendants assert that the “extremely modest jury verdict” of “a token punitive damages award” compels a reduction of the lodestar amount. (See Def. Mem. at 21, 23; see also id. at 1 (contrasting “exorbitant award of attorneys’ fees sought” with “the modest [jury] award of $50,002, less than the minimum diversity jurisdictional amount under the federal statutes.”)) The amount of money plaintiffs recovered is plainly irrelevant to the present motion. In United States Football League v. National Football League, 887 F.2d 408, 415 (2d Cir.1989), the Second Circuit approved an award of attorneys’ fees of $5.5 million dollars in a case in which plaintiffs were awarded a mere three dollars. See id. at 410-11. A few months ago, the Second Circuit explicitly rejected an approach that would have reduced an attorneys’ fees award on the basis of the amount of damages ultimately awarded at trial: Congress enacted fee-shifting in civil rights litigation precisely because the expected monetary recovery in many cases"
},
{
"docid": "23162236",
"title": "",
"text": "for Hashimoto. That verdict, however, was vacated by the district court in light of Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), which held that the 1991 amendments to the Civil Rights Act of 1964, providing for jury trials and compensatory damages, were not retroactive in application. Hashimoto does not contest the district court’s decisions to vacate the jury verdicts. To avoid a third trial, and “in the interests of judicial efficiency and economy,” the parties were instructed to submit proposed findings of fact and conclusions of law based on the evidence admitted in the second trial. The district court thereafter issued its findings of fact and conclusions of law. Hashimoto v. Dalton, 870 F.Supp. 1544 (D.Haw. 1994). The court concluded on the Case 1 discrimination claims that “the adverse personnel actions taken against Plaintiff were not the result of any discriminatory animus but rather because of her repeated refusal or failure to follow instructions, her refusal to perform assigned tasks, her obstinate manner of dealing with her superiors, and her inability to work under the supervision of military officers.” Id. at 1547. Further, the court concluded that Hashimoto’s Case 2 retaliation claim was meritless because the Army would not have hired her even if a negative job reference had not been disseminated. Id. Nevertheless, the court specifically enforced the EEOC’s award of attorney’s fees, and awarded additional attorney’s fees and costs on the Case 2 retaliation claim to the extent that the expenditures related to enforcement of the EEOC’s award of attorney’s fees. The government appeals the district court’s order awarding Hashimoto attorney’s fees and costs. Hashimoto cross-appeals the district court’s orders (1) dismissing on procedural grounds her claims relating to her 5-day suspension and her termination pursuant to a RIF; (2) granting summary judgment in favor of the government in her Case 1 retaliation claim; and (3) granting judgment in favor of the government on her remaining Case 1 disparate impact claims. II. Attorney’s Fees A. The Title VII Violation The district court concluded that “[a] negative job reference is an"
},
{
"docid": "22076770",
"title": "",
"text": "“policy or custom.’’ Id. at 694, 98 S.Ct. at 2037. McDaniel denied inflicting any injury on Spell as a defense to the individual-capacity claim against him. The City also denied (for lack of sufficient knowledge or information) that McDaniel had inflicted injury on Spell, and alternatively denied that there was any basis for imposing municipal liability upon it under Monell. The case then went to trial before a jury on the issues whether, as a matter of fact, McDaniel had assaulted Spell and was therefore liable individually, and if so, whether there existed a basis in law and fact for also imposing joint liability upon the City for the resulting constitutional deprivation. After an 18-day trial, the jury returned verdicts finding McDaniel, in his individual capacity, and the City in its municipal capacity, jointly and severally liable. It awarded $1,000 in compensatory damages, and declined to award the punitive damages sought against McDaniel. Spell then moved to set aside the $1,000 compensatory award as inadequate and for a new trial on the compensatory damages issue alone. The district court granted this motion, denying, inter alia, the defendants’ counter-motion for new trial on all the issues if the verdict was to be set aside for inadequacy of the damage award. On the re-trial of the damages issue, the jury returned a verdict for $900,000 compensatory damages. After denying defendants’ renewed post-verdict motions for judgment n.o.v. or, alternatively, a new trial, the district court awarded Spell attorney fees and costs totalling $335,942.57. 616 F.Supp. 1069. Joint and several judgments against McDaniel and the City were then entered on the damage and fee awards. This appeal followed. Before us, the defendants join in contending that the district court erred in ordering a new trial on damages alone after setting aside as inadequate the first jury verdict; in making various evidentiary rulings; and in awarding unreasonably excessive attorney fees to Spell as prevailing party under 42 U.S.C. § 1988. The City alone contends that the evidence did not warrant submission of the municipal liability issue to the jury and, in the alternative, that the"
},
{
"docid": "22450362",
"title": "",
"text": "of invited error applicable in context of civil jury trial). The trial court’s instruction on nominal damages was an incorrect statement of the law and amounted to invited error. Nevertheless, this question of invited error is irrelevant. We are concerned not with the accuracy of the jury instruction on nominal damages, but rather with the trial court’s erroneous decision to enter judgment for both defendants. Note that in spite of the erroneous instruction on nominal damages, the jury found for plaintiff Floyd and against defendant the City of Sherwood. On the basis of this verdict, the trial court entered judgment for both defendants, Police Chief Laws and the City of Sherwood. Third, Laws argues that Floyd’s request for attorney’s fees, pursuant to 42 U.S.C. § 1988, was untimely. This is incorrect in light of White .v. New Hampshire Dept, of Empl. Sec., 455 U.S. 445,102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), and Metcalf v. Borba, 681 F.2d 1183, 1184-86 (9th .Cir.1982). White involved a section 1983 action in which the complaint did not specifically request attorney’s fees. Id. 455 U.S. at 447, 102 S.Ct. at 1164. In White, the Supreme 'Court held that the section 1988 request for attorney’s fees was timely, although filed four and one-half months after entry of final judgment. Id. at 448, 102 S.Ct. at 1164. The Court also held that a section 1988 request for attorney’s fees is not subject to the ten-day limit for Rule 59(e) motions to alter or amend the judgment. Id. at 452, 102 S.Ct. at 1166. In Metcalf, 681 F.2d at 1184, 1187, this court followed White in holding that a section 1988 motion for attorney’s fees was timely although it was filed twenty-five days after entry of judgment. D. Even if jury awards zero actual damages, judgment and $1.00 nominal damage award are mandatory if plaintiff proves violation of her constitutional right. Floyd correctly cites Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), for the proposition that a plaintiff in a civil rights action under section 1983 is entitled to nominal damages as a"
},
{
"docid": "7130444",
"title": "",
"text": "F.2d 934, 938 (1st Cir.1992) (quoting Hart v. Bourque, 798 F.2d 519, 523 (1st Cir.1986) (internal quotation marks omitted)). “[Sjtaffing issues are often best resolved by the trial court’s application of its intimate, first-hand knowledge of a particular case’s nuances and idiosyncracies.” Id. at 939. It is not unreasonable to expect that an attorney assisting in a trial would want to attend trial and conference with the lead attorney to assist lead counsel to shape the litigation as it progresses. McDonough, 353 F.Supp.2d at 185. Given the complex nature of this case, the Court concludes that it was reasonable and necessary for Pastorok to attend and confer with Bernstein throughout the trial. After review of the billing records, the Court concludes that Pastorok did not spend time duplicating the work of Bernstein, as a bulk of Pastorok’s work involved hours preparing witnesses, direct and cross-examination with Bernstein as second chair at the trial, and drafting memoranda of law that were not handled by Bernstein. See Pl.’s Mem. Ex. D, Pas-torok Aff. (“Pastorok Aff.”). The Court will deduct 15.10 hours for the time Pas-torok spent waiting at the courthouse for the jury verdict, as it is excessive for both attorneys to be present during jury deliberations. See Alfonso v. Aufiero, 66 F.Supp.2d 183, 193 (D.Mass.1999) (Saris, J.) (eliminating 62.6 hours spent waiting in the courthouse for the jury’s verdict because “[cjounsel were free to leave and/or work on matters for other clients during that time”). In addition, the Court will reduce Pastorok’s hours by 1.3 hours spent “[participating in interview of client by Lowell Sun”. Pastorok Aff., Billing Entries 10/31/05; Parker, 310 F.Supp.2d at 393 (denying award of attorneys’ fees for “media-related time to individual civil rights plaintiffs”). In summary, Pastorok’s time will be reduced by 16.4 hours. In addition, defendants Flynn and Local 382 argue that 458.25 hours of work by paralegal Bennett should be denied or significantly reduced because of vague time records regarding the nature of the time claimed. Flynn/Loeal 382 Opp. at 11-12. The Court agrees that the undetailed and general billing entries and duplicative work warrant"
},
{
"docid": "3852159",
"title": "",
"text": "MEMORANDUM AND ORDER ON ASSESSMENT OF ATTORNEYS’ FEES AND COSTS SARIS, District Judge. INTRODUCTION After some success in a jury trial in a contentious civil rights action against the City of Somerville, Massachusetts (the “City”), and eight of its police officers, plaintiffs petition for an assessment of attorneys’ fees and costs under 42 U.S.C. § 1988 (Docket No. 208). Pursuant to a post-trial settlement agreement among the parties, the City has agreed to pay all attorneys’ fees and costs awarded by the Court. Plaintiffs seek $240,961 in fees, plus expenses of $50,452.31, for a total of $291,413.31. The City, arguing that plaintiffs’ counsel failed to exercise “billing judgment” and that plaintiffs’ request is grossly out of proportion to the results actually obtained in the case, challenges numerous aspects of the fee petition and asserts that it owes plaintiffs, at most, only $81,149.66. After considering the billing records and related materials submitted by the parties, the Court ORDERS the City to pay a total of $129,903.38 in fees and $36,757.67 in costs. BACKGROUND The Court briefly summarizes the facts and procedural history leading up to this petition as background for the determination of a reasonable fee award. This case arose out of a complicated sequence of events beginning in the early morning hours of October 8, 1994, at Night Games, a Somerville nightclub. Plaintiffs German Alfonso and Christopher Mittell, two young Hispanic men, claimed that a group of plain-clothes Somerville police detectives — led by defendant Lieutenant John Bossi and including defendants John T. Aufiero, Christopher Ward, and James Hyde — attacked and beat them without provocation inside Night Games and in the club’s parking lot. According to plaintiffs, defendants also beat two other individuals, Michael Henderson and Joseph Spear, at the club. Defendants placed plaintiffs, Henderson and Spear in a police van, where the assaults allegedly continued before the occupants were transported to the Somerville police station. Once at the station, plaintiffs and Spear were detained together in a holding cell. Henderson, plaintiffs maintained, was beaten in another room. Plaintiffs claimed that defendants, taunting them with racial epithets, again attacked"
},
{
"docid": "14749328",
"title": "",
"text": "fees within this district, takes into account attorneys’ fee petitions previously encountered within this district. This Court recognizes that Schwartz is a highly skilled civil rights attorney with years of experience and is quite prominent within the Boston legal community. Schwartz’s request for an hourly rate of $330, however, is too steep. Although some large Boston law firms might charge this amount, as indicated by the report from the Massachusetts Lawyers Weekly, such figures simply do not speak to whether those lawyers provide similar services to their clients. This Court therefore holds that a fee of $250 is a reasonable hourly rate for a civil rights attorney of Schwartz’s outstanding quality. See, e.g., Alfonso v. Aufiero, 66 F.Supp.2d 183, 197 (D.Mass.1999) (Saris, J.) (holding that $250 is a typical hourly rate for a senior private civil rights trial attorney in Boston); Zurakowski v. D’Oyley, 46 F.Supp.2d 87, 89 n. 2 (D.Mass.1999) (holding that hourly rate of $240 was reasonable where counsel was “foremost practitioner” in civil rights but noting that this rate “Ought not be taken as some emerging Massachusetts standard”); Connolly v. Harrelson, 33 F.Supp.2d 92, 95-96 (D.Mass.) (approving hourly rate of $200 in civil rights case for attorney with twenty-five years of experience), aff'd, 201 F.3d 426, 1999 WL 699906 (1st Cir.1999); McLaughlin ex rel. McLaughlin v. Boston Sch. Comm., 976 F.Supp. 53, 62 (D.Mass.1997) (Garrity, J.) (holding $200 hourly rate reasonable in civil rights action). Moreover, this is the highest amount that any other court has awarded Schwartz in previous litigation. Schwartz Aff. ¶ 13 (describing court awarded hourly rates ranging from $200 in 1987 to $250 in 1996). Thus, the Court awards Schwartz at a $250 hourly rate. With respect to Scheckner and Massey, this Court has little information from which to determine hourly rates. Within the law firm of Rodgers, Powers & Schwartz, Scheckner bills at $190 per hour and Massey bills at $75 per hour. Id. ¶¶ 14-15. Moreover, the information provided by Schwartz informs the Court that among Boston firms, the associate hourly rate ranges from $75 per hour to $310 per hour."
},
{
"docid": "3387388",
"title": "",
"text": "factors other than age or race.” Id. (FFCL ¶ 101). Thus, the district court found that Akron’s “2004 promotional process for promotion to Lieutenant” and Captain discriminated against the Plaintiffs on the basis of race in violation of 42 U.S.C. § 2000e-2(k)(l)(A)(i) and the Ohio Revised Code §§ 4112.02(A) and .99. Id. at 11-12 (FFCL ¶¶ 102-03) (Page ID # 7746-47). The district court awarded the Plaintiffs “front pay as determined by the jury,” as well as attorney fees and costs and further relief to be addressed after full briefing. Id. at 12 (FFCL ¶¶ 104-05) (Page ID # 7747). D. The Post-Verdict Motions On October 19, 2009, the Plaintiffs and Akron filed post-judgment motions. The Plaintiffs filed a motion pursuant to Feder al Rule of Civil Procedure 59(e) to alter or amend the judgment, requesting additional relief: (1) back pay calculated through the date of judgment or promotion; (2) “grossing up” for tax liability on the wages paid in a lump sum; (3) prejudgment interest; (4) permanent injunctive relief in the form of a promotion for any prevailing plaintiff electing to be promoted; (5) pension adjustments; (6) post-judgment interest from the date of judgment until payment; (7) a posthumous promotion .and adjustment for Crawford; (8) permanent injunc-tive relief in the form of a new equitable, valid promotional process; appointment of a receiver to oversee the development of a new promotional process; (9) court monitoring until all issues related to the case are fully resolved; and (10) “any other relief as set forth in Plaintiffs’ motions for equitable relief.” R. 280 at 1-2 (Pis.’ Rule 59(e) Mot. to Amend. J.) (Page ID # 7756-57). Akron filed two motions: A renewed motion for judgment as a matter of law, new trial, or remittitur pursuant to Federal Rules of Civil Procedure 50(b) and 59; and a Rule 59(e) motion to alter or amend the judgment, new trial, or remittitur. See R. 282 (Def.’s Renewed Mot. for J. as a Matter of Law “JMOL” or Mot. for a New Trial, or- Remittitur) (Page ID # 7761-69); R. 283 (Def.’s Rule 59(e) Mot. to"
},
{
"docid": "7249035",
"title": "",
"text": "obligated to do it for them, and cut the amount of hours for which payment is sought, pruning out those that are excessive, redundant, or otherwise unnecessary. See ACLU v. Barnes, 168 F.3d at 428. In his motion and supplemental motion for attorney’s fees, Jaret uses a benchmark rate of $325.00 per hour, and claims that he has spent a total of 49.1 hours litigating the case, and thus is entitled to $12,610 in attorney’s fees and $6,597.50 in post-motion attorney’s fees. Defendants contend, however, that Plaintiffs motion attesting to the fact that counsel spent 38.8 hours pursuing a claim for $316 is “outrageously excessive.” Courts have denied reasonable attorney’s fees in the face of grossly excessive fee requests in the context of civil rights fee-shifting statutes. See, e.g. Lewis v. Kendrick, 944 F.2d 949, 958 (1st Cir.1991) (attorney’s fee request of over $50,000 denied in light of jury verdict of $1,000); Fair Hous. Council v. Landow, 999 F.2d 92, 97-98 (4th Cir.1993) (overturning attorney’s fee award of $20,000 due to failure to allocate the limited portion of fees attributed to the minor successful claim); Vocca v. Playboy Hotel of Chicago, 686 F.2d 605 (7th Cir.1982) (denial of entire request for attorney’s fees due to unreasonable refusal to settle the case earlier). At the outset, the Court notes that the FLSA provides for a mandatory award of attorney’s fees, where fee-shifting provisions in Civil Rights statutes, provide for more discretion. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416 n. 5, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Nevertheless, as other courts have recognized, an entitlement to attorney’s fees cannot be a carte blanche license for Plaintiffs to outrageously and in bad faith run up attorney fees without any threat of sanction. See id. Furthermore, courts in this jurisdiction may award attorney’s fees under the FLSA to prevailing defendants upon a finding that the plaintiff litigated in bad faith. See Turlington v. Atlanta Gas Light Co., 135 F.3d 1428 (11th Cir.1998) (internal citations omitted). In light of what is at best, extremely modest damages, Jaret’s behavior casts doubt on"
},
{
"docid": "3852163",
"title": "",
"text": "January 11, 1999, plaintiffs proceeded to a jury trial against the individual officers. At the close of their case, plaintiffs voluntarily dismissed their claims against three of the officers: Timothy Doherty, Patrick Irving, and Joseph Blair. At the end of the trial, which lasted twelve days, the Court charged the jury on the § 1983, § 1985(3), malicious prosecution, and intentional .infliction of emotional distress claims. After seven days of deliberations, the jury returned a verdict against two of the officers. It found that defendants Hyde and Bossi had intentionally inflicted emotional distress upon Mittell and that Hyde had used excessive force against him in the police van outside Night Games. The jury also found that Hyde and Bossi had intentionally inflicted emotional distress upon Alfonso and that Bossi had. used excessive force against him in the holding cell. It awarded $4425 in compensatory damages to Mittell for intentional infliction of emotional distress, $3751 in compensatory damages to Alfonso for the same, and $3750 in punitive damages to each plaintiff on the excessive force claims, for a total verdict of $15,676 ($8175 to Mittell and $7501 to Alfonso). Although marked by some degree of jury confusion, the verdict reflects a finding that plaintiffs’ civil rights were violated by Hyde and Bossi but that the violations in and of themselves did not cause plaintiffs any compensatory damages. The print, media, having intently followed the case throughout, reported the result largely as a victory, for the defendants. See Patricia Nealon, Jury Rejects Most Claims in Somerville Beating Case, Boston Globe, Feb. 9, 1999, at Bl; Ralph Ranalli, Jury Finds Little Wrong Done by Cops in Brawl, Boston Herald, Feb. 9, 1999. New England Cable News, which assigned an investigative reporter to the story, gave a more positive. spin on the outcome from plaintiffs’ vantage point. The parties’ wrangling continued after trial. In a series of increasingly hostile letters, they disputed whether they had reached a binding settlement agreement in the hour or so after hearing the jury’s verdict, and just before commencing the second phase of the trial on municipal liability. Plaintiffs"
},
{
"docid": "20657086",
"title": "",
"text": "court granted partial summary judgment to the defendants as to retaliation and as to most disparate treatment claims, but allowed the plaintiff to proceed on his hostile work environment and emotional distress claims. Turley v. ISG Lackawanna, Inc., 803 F.Supp.2d 217 (W.D.N.Y.2011). The trial lasted for three weeks, after which the jury deliberated for less than a full day before reaching a verdict. They found all defendants liable to Turley for creating a hostile work environment, and Sampsell and Lackawanna liable on the emotional distress claim. Following a two-day trial on damages, the jury awarded a total of $1,320,000 in compensatory and $24,005,000 in punitive damages against the defendants, broken down by defendant. After trial, the defendants moved under Federal Rules of Civil Procedure 50(b) and 59 for judgment as a matter of law, a new trial, or remittitur of damages, on several grounds. Turley v. ISG Lackawanna, Inc., 960 F.Supp.2d 425, 433 (W.D.N.Y.2013). The district court denied the defendants’ motion for judgment as a matter of law, but partially granted the motion for a new trial based on its conclusion that the punitive damages award was excessive. Id. at 450, 456. The court ordered the new trial unless the plaintiff agreed for the punitive damages award to be reduced to a total of $5 million on remittitur, a figure the district court thought represented “the upper most limit permissible under the law.” Id. at 453-54. The plaintiff accepted the reduction. A final breakdown of the awards is as follows: Compensatory Punitive Hostile Work Environment Corporate defendants $1,000,000 $4,000,000 Sampsell $25,000 $0 Marchand $25,000 $0 Jaworski $10,000 $0 Subtotal $1,060,000 $4,000,000 Intentional Infliction of Emotional Distress ArcelorMittal USA Lackawanna Inc. $250,000 $998,750 Sampsell $10,000 $1,250 Subtotal $260,000 $1,000,000 Total $1,320,000 $5,000,000 See id. at 456. .The district court also awarded the plaintiff attorney’s fees of $437,323.30 and costs of $32,711.42. Id. The defendants appealed. DISCUSSION The degree of racial intimidation and ridicule that pervaded Turley’s workplace during the relevant period far surpassed any threshold necessary to demonstrate a hostile and abusive work environment. See, e.g., Harris v. Forklift Sys., Inc.,"
},
{
"docid": "3933733",
"title": "",
"text": "judgment as a matter of law, for a new trial, or alternatively, to alter or amend the judgment in this case. The district court denied the post-trial motions, except to conclude that it would grant a new trial as to damages unless New-house agreed to a remittitur of the jury’s front pay award on the ADEA claim within ten days of the court’s order. Newhouse timely consented to reducing the jury’s front pay award to $158,365.96, and the district court denied McCormick’s motion for a new trial. McCormick appeals, arguing that the district court erred in the ADEA claim by submitting the issue of front pay to the jury and by denying its motions for judgment as a matter of law, for a new trial, and to alter or amend the judgment. McCormick also argues that the district court erred in its findings of fact, conclusions of law, and order of relief in the Nebraska state claim. New-house cross appeals the district court’s refusal to grant him enhanced attorney fees. II. Discussion A. Judgment as a Matter of Law McCormick moved for judgment as a matter of law at the close of Newhouse’s evidence, at the close of its own ease, and at the end of the case. In each instance, the district court denied the motion. “It is well settled that we will not reverse a jury’s verdict for insufficient evidence unless, after viewing the evidence in the light most favorable to the verdict, we conclude that no reasonable juror could have returned a verdict for the non-moving party.” Ryther v. RARE 11, 108 F.3d 832, 835 (8th Cir.1997) (en banc). Our standard for reviewing the sufficiency of proof in an age discrimination ease tried to verdict by a jury is set forth in Ryther. See id., 108 F.3d at 835-37, 844. The fundamental issue is “whether [the plaintiff] produced sufficient evidence to allow a jury reasonably to find that [the employer] intentionally discriminated against him on the basis of his age.” Id., 108 F.3d at 837. McCormick contends that Newhouse failed to establish that its articulated reasons for"
},
{
"docid": "7130445",
"title": "",
"text": "will deduct 15.10 hours for the time Pas-torok spent waiting at the courthouse for the jury verdict, as it is excessive for both attorneys to be present during jury deliberations. See Alfonso v. Aufiero, 66 F.Supp.2d 183, 193 (D.Mass.1999) (Saris, J.) (eliminating 62.6 hours spent waiting in the courthouse for the jury’s verdict because “[cjounsel were free to leave and/or work on matters for other clients during that time”). In addition, the Court will reduce Pastorok’s hours by 1.3 hours spent “[participating in interview of client by Lowell Sun”. Pastorok Aff., Billing Entries 10/31/05; Parker, 310 F.Supp.2d at 393 (denying award of attorneys’ fees for “media-related time to individual civil rights plaintiffs”). In summary, Pastorok’s time will be reduced by 16.4 hours. In addition, defendants Flynn and Local 382 argue that 458.25 hours of work by paralegal Bennett should be denied or significantly reduced because of vague time records regarding the nature of the time claimed. Flynn/Loeal 382 Opp. at 11-12. The Court agrees that the undetailed and general billing entries and duplicative work warrant a significant reduction of hours billed by Bennett. See Wilcox, 921 F.Supp. at 846 (finding that several undetailed and unrealistic entries were indicative of excessive billing). Flynn and Local 382 correctly bring to the Court’s attention significant hours billed under the general headings “material facts” and “trial prep”. It is not reasonable for Bennett to charge time spent preparing for and attending depositions or reviewing summary judgment motions and opposition memoranda that were also billed by Pastorok and Bernstein. See Pl.’s Mem., Ex. 3, Billing Statement for Bennett; McDonough, 353 F.Supp.2d at 185 (“[It] is not reasonable to allow [the Defendant] to be billed for hours that were spent duplicating the work of another.”) Furthermore, billing entries between December 9, 2003 and December 22, 2003, list one “Megan G.” as part of the billed task. See Pl.’s Mem., Ex. 3, Billing Statement for Bennett. Because neither Bennett nor Bernstein explain who “Megan G.” is or how she relates to Bennett’s work, the Court will subtract all billed hours that reference “Megan G.” Therefore, the Court"
},
{
"docid": "23289273",
"title": "",
"text": "Cooper-Jarrett, Inc., No. 72-466, op. at 23 (W.D.Pa., August 20, 1974) (unpublished opinion). Plaintiff’s case went to trial for a second time in October, 1974, against the three remaining defendants on the antitrust claim, Cooper-Jarrett, Matlack, and Wilson, and against Cooper-Jarrett only on the state-law claim. After the jury was sworn, but before plaintiff’s opening statement, Cooper-Jarrett and Matlack settled all claims against them. In return for $37,500 from Cooper-Jarrett and $22,500 from Mat-lack, plaintiff executed a joint tortfeasor release in favor of those two defendants in settlement of all claims. The settlement agreement specifically included attorneys’ fees and costs. And plaintiff specifically reserved all his rights against Wilson, with whom settlement negotiations had proved unsuccessful. At some point after plaintiff received the $60,000 settlement from Cooper-Jarrett and Matlack, he paid $20,000 to attorney Mcll-vaine as an attorney’s fee. The only money plaintiff had previously paid either of his attorneys was $500 that he advanced to Simmons against costs. After an eight-day trial, the jury returned a verdict against Wilson and fixed damages at $25,000. The district court denied Wilson’s motion for judgment n. o. v., again finding the evidence sufficient to support the verdict. After trebling the award and then off-setting the amount received in settlement, the district court entered judgment against Wilson in the amount of $25,-200. Baughman v. Cooper-Jarrett, Inc., 391 F.Supp. 671 (W.D.Pa.1975). We upheld the jury verdict on appeal. Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 531-33 (3d Cir.), cert. denied, 429 U.S. 825, 97 S.Ct. 78, 50 L.Ed.2d 87 (1976). But because the district court had erred in computing the amount of the settlement to be offset against the damage award, we vacated that part of the district court’s judgment and remanded with directions to enter judgment against Wilson for $30,600. Id. at 533-35. Both the order appealed from and our opinion “left undetermined the amount of an award of attorney’s fees recoverable pursuant to 15 U.S.C. § 15.” Id. at 531 n.2. Thus plaintiff recovered a total of $90,-600: $60,000 in settlement from Cooper-Jarrett and Matlack; and $30,600 upon the verdict against Wilson."
},
{
"docid": "22425030",
"title": "",
"text": "law under Federal Rule of Civil Procedure 50(b) and for remittitur of the jury’s verdict, both of which the district court denied. The Defendants timely appealed, and each Plaintiff filed a timely conditional cross-appeal challenging the district court’s grant of summary judgment in favor of the City of Detroit, as well as several of the district court’s evidentiary rulings. II. ANALYSIS On appeal, the Defendants challenge the district court’s denial of their motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). They specifically allege that the district court erred in rejecting their claims that (1) they were entitled to qualified immunity, (2) insufficient evidence supported the jury’s verdict as to the false-imprisonment claim, (3) insufficient evidence supported the jury’s verdict as to the malicious-prosecution claims, (4) insufficient evidence supported the jury’s verdict as to the claims that the Plaintiffs’ due-process rights were violated as a result of a Brady violation, (5) they were entitled to a new trial because the jury’s verdict was unsupported by the evidence, (6) insufficient evidence sup ported an award of punitive damages, and (7) they were entitled to remittitur because the damages award was clearly excessive. A. Qualified-Immunity Defense The Defendants first argue that the district court erred in denying their Rule 50(b) motion on qualified-immunity grounds. As the Plaintiffs correctly contend, however, the Defendants have waived this claim by failing to raise the matter in their Rule 50(a) motion prior to the district court’s submission of the case to the jury. Federal Rule of Civil Procedure 50(a) allows a party to bring a motion for judgment as a matter of law “at any time before the case is submitted to the jury.” Fed.R.Civ.P. 50(a)(2). If the district court denies that motion and the case is submitted to the jury, “the movant may file a renewed motion for judgment as a matter of law” within ten days after the entry of judgment on the verdict. Id. 50(b). It is a “well-established proposition,” however, “that a post-trial motion for judgment as a matter of law is not available at anyone’s"
},
{
"docid": "3852164",
"title": "",
"text": "for a total verdict of $15,676 ($8175 to Mittell and $7501 to Alfonso). Although marked by some degree of jury confusion, the verdict reflects a finding that plaintiffs’ civil rights were violated by Hyde and Bossi but that the violations in and of themselves did not cause plaintiffs any compensatory damages. The print, media, having intently followed the case throughout, reported the result largely as a victory, for the defendants. See Patricia Nealon, Jury Rejects Most Claims in Somerville Beating Case, Boston Globe, Feb. 9, 1999, at Bl; Ralph Ranalli, Jury Finds Little Wrong Done by Cops in Brawl, Boston Herald, Feb. 9, 1999. New England Cable News, which assigned an investigative reporter to the story, gave a more positive. spin on the outcome from plaintiffs’ vantage point. The parties’ wrangling continued after trial. In a series of increasingly hostile letters, they disputed whether they had reached a binding settlement agreement in the hour or so after hearing the jury’s verdict, and just before commencing the second phase of the trial on municipal liability. Plaintiffs also moved for a new trial. On March 12, 1999, at a conference before this Court, the parties signed a settlement agreement requiring defendants Hyde and Bossi personally to pay the amount of the punitive damages awarded by the jury and providing that the City would pay the remainder of the damages awarded, with prejudgment interest, as well as all attorneys’ fees and costs as determined by this Court. Plaintiffs released all other claims, and both sides waived their appellate rights on all issues except attorneys’ fees, costs, and the effect of defendants’ Rule 68 offer of judgment on the assessment of fees and costs. Pursuant to the terms of the agreement, the Court entered a settlement order of dismissal on March 15,1999. Plaintiffs filed this fee petition on March 31, 1999.. In support, plaintiffs have submitted an accounting of legal services amounting to 1030.1 hours in attorney time and reflecting a balance of $238,961. (Pis.’ Pet. Ex. E.) These figures do not include time that plaintiffs’ counsel, Attorney Robert L. Hernandez, anticipated spending to"
},
{
"docid": "21688272",
"title": "",
"text": "court erred in failing to instruct the jury that the burden of persuasion shifts to the defendant after proof of a prima facie case by the plaintiff. We conclude that it was unnecessary to do so. It is clear that, after Robinson made his prima facie case, Monsanto came forward with persuasive evidence of reasons other than retaliation for the discharge. It was not necessary to instruct the jury that it was Monsanto’s burden to come forward with that evidence. D. The Denial of Monsanto’s Motion for Attorneys’ Fees. After the jury returned its verdict and the magistrate entered judgment, Monsanto filed a motion for an award of reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988, which the magistrate denied. Monsanto contends that the court abused its discretion in denying this motion because the weight of the evidence established that Robinson’s suit was frivolous and vexatious. In support of this contention, Monsanto asserts that Robinson brought suit without proof of purposeful discrimination or that he was treated differently than similarly situated white persons. In addition, Monsanto submits that Robinson’s suit constituted a deliberate exploitation of the civil rights laws. We disagree. The award of attorneys’ fees lies within the sound discretion of the trial court. Obin v. District No. 9 of the Int’l Ass’n of Machinists and Aerospace Workers, 651 F.2d 574, 586 (8th Cir.1981). An award of attorneys’ fees to a prevailing defendant in a civil rights suit is warranted only if the court finds that the plaintiff’s claim was frivolous, unreasonable, or without foundation, or if the action was brought in bad faith. Id. at 577. In deciding whether to grant such a motion, the Supreme Court has cautioned that “it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22, 98 S.Ct. 694, 700-01, 54 L.Ed.2d 648 (1978). The trial of Robinson’s action lasted five days. The magistrate denied both Monsanto’s and"
}
] |
285798 | "at *3 (S.D.N.Y. Aug. 25, 2009). . See 10 N.Y. Comp.Codes R. & Regs. § 5-1.1 (a1) (2006) (""MCL means the maximum permissible level of a contaminant in water which is delivered to any user of a public water system.”); id. at § 5-1.52, Table 3 (setting the MCL at ten ppb). . See In re MTBE Prods. Liab. Litig., 458 F.Supp.2d 149, 159 (S.D.N.Y.2006). . See In re MTBE Prods. Liab. Litig., 591 F.Supp.2d 259, 275 (S.D.N.Y.2008) (""[T]he place the harm or risk of harm occurred is the capture zone of each well, where the MTBE now contaminating the well must have first contaminated the groundwater.”); In re MTBE, 2009 WL 2634749, at *2 n. 21. . REDACTED . 8/24/09 Tr. at 2613:11-15. . Id. at 2614:9-12. . See id. at 2614:15-18. . 8/18/09 Tr. at 1893:23-1894:15. . Id. at 1896:12-21 (""Well, I got a schedule of how wells [are] planned to be pumped, from consultants that are water planners for the City of New York. So they gave me what was the proposed pumping scenario for all these wells in the Queens area____We really can't look at Station 6 by itself because there are other wells near Station 6, and when those wells pump they affect the water flow direction at the wells near Station 6 also. So rather than looking at just how Station 6 will operate, you also have to look at how the" | [
{
"docid": "3356170",
"title": "",
"text": "337, City of New York v. Amerada Hess Corp., No. 00 MDL 1898, 04 Civ. 3417 (S.D.N.Y. July 6, 2009). For ease of understanding, I will continue to use \"the City” to refer to all three plaintiffs. . See JPTO II at 5. . N.Y. Gen. City Law § 20(2). . See JPTO II at 5. . See id. On May 13, 2008, the DEC renewed this permit for an additional eleven years. The current permit authorizes the City to operate sixty-eight wells in the system, including the five at issue in this trial. See id. . See id. at 8. . See id. . See id. . See id. at 10. . See id. at 6. . See id. . See id. . See id. . See id. at 8. . See id. . See id. . See id. at 7-8. . See 4/22/09 Deposition of William A.T. Meakin, expert for the City, at 222:22-23, Ex. 4 to 5/26/09 Declaration of Nicholas G. Cam-pins, counsel for the City (\"Campins Decl.\"). . See 4/17/08 Deposition of James J. Roberts, expert for the City, at 72:15-21, Ex. 3 to Campins Decl. . For example, Exxon emphasizes that the City received a recommendation in 1987 to abandon all of the Station 6 wells, long before MTBE was detected. See JPTO II at 10. .The City emphasizes that a 2003 USGS analysis of 275 organic and inorganic constituents in fifty Brooklyn and Queens wells reported MTBE to be the most frequently detected contaminant. See JPTO II at 4. The City also notes that a defense expert of a settling party stated in his report that \"MTBE is ubiquitous in the Region’s shallow aquifers.” See 3/9/09 Expert Report of James A. Schaeffer, expert for defendant Getty Properties Corporation, Ex. L to 5/26/09 Declaration of Daniel Greene, counsel for the City (\"Greene Decl.”). Another defense expert testified that the City’s groundwater system has “by far” more MTBE contamination than in typical communities using public supply wells. See 1/30/09 Deposition of Dr. Fletcher G. Driscoll, at 174:20-177:8, Ex. K to Greene Decl. . The parties dispute"
}
] | [
{
"docid": "3356168",
"title": "",
"text": "rebut Exxon’s contention that the City has abandoned the wells. The evidence is relevant for that purpose and is therefore admissible in Phase I. Further, contrary to Exxon’s argument, the amount of money spent to upgrade the wells is also relevant and admissible because it may help the jury understand how committed the City is to using these wells in the future. However, during Phase I, when MTBE contamination will not be an issue, the City may not attribute those costs to MTBE contamination. Finally, the City may not present evidence of future design costs in Phase I. During Phase III, the jurors will be carefully instructed that the future treatment costs are relevant only to damages and not to the question of whether the City has been injured. V. CONCLUSION For the foregoing reasons, Exxon’s motion in limine is granted in part- — -to the extent that the City may not attribute the past design costs to MTBE contamination and may not present evidence of future design costs in Phase I — and denied in all other respects. The Clerk of the Court is directed to close this motion (No. 04 Civ. 3417, document 95; No. 00 MDL 1898, document 2306). SO ORDERED. . This Opinion assumes familiarity with facts discussed in this Court's previous opinions in this case. For a general discussion of the MTBE litigation, see In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 379 F.Supp.2d 348, 364-67 (S.D.N.Y.2005). . See Memorandum of Law in Support of Defendants' Joint Motion In Limine to Exclude Evidence and Argument Regarding Plaintiff's Past and Future Investigation and Treatment Costs Until It Proves Actual Injury (\"Def. Mem.”). . See Joint Pretrial Order for Phase II (\"JPTO II”) at 5. . See id. . See JPTO II at 5. Exxon recently contested whether the City owns the groundwater system and is the proper plaintiff in this case. On July 6, 2009, this Court resolved any potential dispute by joining the New York City Water Board Authority and the New York City Municipal Water Finance Authority as necessary plaintiffs. See Order, No."
},
{
"docid": "3356147",
"title": "",
"text": "no firm plans to build a treatment cluster at Station 6 and that City planners currently favor building a third tunnel to surface water reservoirs to satisfy any projected water shortages. City deposition witnesses testified that the City has completed early stages of the design process for the Station 6 treatment cluster and has earmarked funds for final design and engineering work. The City alleges that it has already spent just under one million dollars in designing the Station 6 treatment cluster and seeks damages for that expenditure. None of the Station 6 wells were turned off in response to MTBE contamination and Exxon contends that these wells are unusable for reasons unrelated to MTBE contamination. The City contends that the value of pumping water from these wells far exceeds the cost of treating the other contaminants and that other contaminants are more easily removed — at a much lower cost — than MTBE. The City further asserts that if the Station 6 wells are turned back on, there will be an immediate influx of MTBE. B. Trial Structure This Court adopted a bellwether approach to this trial: Among the dozens of wells that the City alleges have been injured by Exxon’s MTBE, Exxon and City each chose five to litigate. The parties recently agreed to litigate only the City’s five focus wells during the initial bellwether trial. The City’s focus wells are 6, 6A, 6B, 6C, and 6D, which are all in Station 6. MTBE has been detected in each of these wells. All of these wells are available for use by the City, but none are currently in use. This case will be tried in four phases, with special jury interrogatories posed at the end of each phase. Phase I will focus on the City’s groundwater supply plans, asking the jury whether the City intends to begin construction of Station 6 in the next fifteen years and to use water from the wells in the next fifteen to twenty-five years. Phase II will ask the jury whether MTBE will be present in the wells when the Station 6"
},
{
"docid": "17156535",
"title": "",
"text": "to mitigate risks to the homeowner. See \"State Standards or Guidelines for MTBE in Ground Water” (“Def. M.C.L. § Rpt.”), Ex. 3 to Harris Rpt., at 1. In addition, New York considers water contaminated at a level at or above 10 ppb to be unpotable. See id. The remaining class states have similar programs and cleanup funds, see Def. States Rpt. at 1, and have set MCLs as follows: 70 ppb (Illinois); 13 ppb for health, and 5 ppb for taste/odor (California); 500 ppb for \"low yield” ground-water and 50 ppb for drinking water (Florida). See Def. M.C.L. § Rpt. 1. . The defendants presented contrary evidence on this point. . The Reynolds’ well water also contains coli-form, another contaminant. See Reynolds Dep. at 28. . Plaintiffs would present evidence regarding the following classwide issues: (1) MTBE's chemical, fate and transport characteristics; (2) defendants' economic motives in choosing MTBE; (3) MTBE's interference with the use and enjoyment of plaintiffs' property; (4) foreseeability of MTBE's environmental consequences; (5) defendants' knowledge of MTBE's characteristics; (6) each defendant's participation in a joint scheme to suppress information regarding MTBE's true characteristics, and to mislead the plaintiffs and the public; (7) defendants' failure to warn of MTBE's harmfulness; (8) causation; (9) defendants' joint liability; and (10) the existence of alternative oxygenates. See Trial Plan at 8-33 (\"Proof of Liability”). . Plaintiffs suggest that at this first stage the Court could, in its discretion, provide for notice and opt-out even for a(b)(2) class. See PI. Mem. at 34 (citing Fed.R.Civ.P. 23(d)(2)); Trial Plan Part I.C.; see also infra note 45 (discussing (b)(2) certification and notice options). . Plaintiffs have estimated that there are several million well owners in New York, Florida, California and Illinois. Plaintiffs predict that only a small percentage of that universe would come forward to request testing. Of those individuals, approximately 20% would meet the criteria for class membership, which plaintiffs estimate to total several tens of thousands. See PI. Mem. at 8. . Before collecting the samples, the homeowner would need to determine whether her water was chlorinated and, if so, add"
},
{
"docid": "21930482",
"title": "",
"text": "S.Ct. 2130. . Id. (quotation marks and citations omitted). . See 10 N.Y. Comp.Codes R. & Regs. § 5-l.l(al) (2006) (\"MCL means the maximum permissible level of a contaminant in water which is delivered to any user of a public water system.”); California Health & Safety Code § 116275(f) (\"[MCL] means the maximum permissible level of a contaminant in water.”). . 10 N.Y. Comp.Codes R. & Regs. § 5-1.52, Table 3. Prior to December 24, 2003, the applicable New York MCL for MTBE was 50 ppb. . See Def. Mem. (OCWD) at 1. Defendants' motion is limited only to those claims relating to detection below the Secondary MCL. See id. at 10 n. 7 (\"Although not an issue in this motion, defendants do not concede that damages are recoverable based on detections above the Secondary MCL of 5 ppb but below the Primary MCL of 13 ppb.”). Ultimately, the difference between California's two MCLs or between the New York and California MCLs is not relevant to the question of whether the MCL generally defines what constitutes a legally cognizable injury. Nevertheless, California’s Secondary MCL would be very relevant to determining whether any claimed injuries regarding taste and odor had harmed OCWD. . Def. Mem. (N.Y.) at 2. Defendants frame plaintiffs' interest as serving \"potable” water, a concept which is, in turn, defined by the applicable MCLs. See id. at 4. See also id. at 6 (\" 'Potable water means a water which meets the requirements established by this Sub-part.' ”) (quoting 10 N.Y. Comp.Codes R. & Regs. § 5-1.1). . See Def. Mem. (OCWD) at 12 (\"The OCWD Act does not confer the right on OCWD to sue to prevent alleged detections of contaminants that the State does not consider actionable.”). See also Defendants' Reply Memorandum in Support of Motion for Summary Judgment of Plaintiff's Claims for Damages Based on MTBE Detections Below the Secondary MCL (\"Def.Rep.Mem.(OCWD)”) at 5 (\"OCWD asserts the right to seek relief and recover damages to protect the drinking water supplies of water purveyors. Obviously, to exercise such a drinking water protection mandate, OCWD (and this"
},
{
"docid": "21930484",
"title": "",
"text": "Court) must apply some standard for what level of MTBE threatens drinking water. DHS established that standard through the MCLs.”) . See Def. Mem. (N.Y.) at 6; Def. Rep. Mem. (OCWD) at 10. . See Def. Mem. (N.Y.) at 7-9; Def. Mem. (OCWD) at 7, 9. . The New York water purveyor plaintiffs point to other provisions of the regulations to argue that \"potable” water must also mean \"water that does not have an offensive odor and taste and is safe to drink,” and that they are \"legally required” to provide \"a safe, adequate and aesthetically pleasing supply of water.” Plaintiffs' Response to Defendants Motion for Summary Judgement on All Claims for Lack of Justiciability (\"Pl.Mem.(N.Y.)”) at 3 (citing 10 N.Y. Comp.Codes R. & Regs. § 40-2.160). . PL Mem. (OCWD) at 3. . Def. Mem. (N.Y.) at 7. See also Def. Mem. (OCWD) at 10 (\"[M]ultiple courts have recognized in similar cases, OCWD does not have a legal right to recover for the alleged injury resulting from MTBE detections below the Secondary MCL.”). . No. Ol-Civ-1271, 2006 WL 1875965 (N.C.Super. June 30, 2006). . 944 F.Supp. 448 (E.D.N.C.1996). . Adams, 2006 WL 1875965, at *31. . Id. (quotation marks and citations omitted). .See PL Mem. (N.Y.) at 18; Plaintiff’s Opposition to Defendants' Motion for Summary Judgment of Plaintiff's Claims for Damages Based on MTBE Detections Below the Secondary MCL (''Pl.Mem.(OCWD)”) at 3. The New York water purveyor plaintiffs argue that their duty to monitor and treat contamination is not limited to instances where the MCL is exceeded, but also where there is \"any deleterious change in raw water quality.” 10 N.Y. Comp.Codes R. & Regs. § 5-1.12. OCWD argues that its duty is to \"investigate and remediate 'any threatened or existing contamination of, or pollution to, the surface or groundwaters of the district' \" and that it is statutorily authorized to recover such costs. PL Mem. (OCWD) at 3 (quoting Cal. Water Code, app. § 40-8(b)). . This Opinion does not consider whether, and to what extent, individual, private well owners (nor water consumers) may be damaged by contamination"
},
{
"docid": "3356146",
"title": "",
"text": "water on par with the quality of the City’s upstate water could be produced from the New York City groundwater system. If Station 6 is completed, the City expects that it will provide up to ten million gallons per day (“mgd”) of potable water to the public. Currently, approximately half of the City’s water supply is distributed through the Rondoub-West Branch Tunnel, which links to a remote surface water reservoir. The tunnel has been leaking for at least ten years, and necessary repairs require taking the tunnel out of service. In order to take the tunnel out of service, the City must find an alternative source of 400 mgd of potable water. In addition, the lack of pumping from the Brooklyn-Queens Aquifer contributes to flooding in Queens. Finally, an additional water management plan suggests that the normal output from the New York City groundwater system should be increased to supplement the upstate drinking water supply in case of droughts, which have occurred at emergency levels four times since 1982. Exxon contends that the City has no firm plans to build a treatment cluster at Station 6 and that City planners currently favor building a third tunnel to surface water reservoirs to satisfy any projected water shortages. City deposition witnesses testified that the City has completed early stages of the design process for the Station 6 treatment cluster and has earmarked funds for final design and engineering work. The City alleges that it has already spent just under one million dollars in designing the Station 6 treatment cluster and seeks damages for that expenditure. None of the Station 6 wells were turned off in response to MTBE contamination and Exxon contends that these wells are unusable for reasons unrelated to MTBE contamination. The City contends that the value of pumping water from these wells far exceeds the cost of treating the other contaminants and that other contaminants are more easily removed — at a much lower cost — than MTBE. The City further asserts that if the Station 6 wells are turned back on, there will be an immediate influx of"
},
{
"docid": "3356183",
"title": "",
"text": "2130. The City need not show, however, that it is about to turn on its wells. If the City can show that its wells will become injured immediately upon turning them on, it need not go through the curious exercise of turning the wells on to injure itself. In alleging that the wells will become contaminated once they are turned on, the City alleges a current threatened harm, which is sufficient to support standing. See Dimarzo v. Cahill, 575 F.2d 15, 18 (1st Cir.1978) (holding that plaintiffs had standing for claims related to fire hazards— despite inability to show that a fire was likely — because they \"need not wait for the conflagration before concluding that a real and present threat exists”). See also Loa-Herrera v. Trominski, 231 F.3d 984, 987-88 (5th Cir.2000) (\"[Ajctual injury is not constitutionally required. Mere threatened injury is sufficient, and the threat in this case is real.”). . The questions of ripeness and the certainty of future harm are analytically distinct. By bringing a claim before threatened injury has become a present or past harm, a plaintiff runs the risk that it will not be able to prove damages with sufficient certainty. However, that does not render the suit unfit for adjudication. . Cf. New York v. United States, 505 U.S. 144, 175, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (finding challenge to a regulation ripe several years before the regulation's effective date because the plaintiff \"must take action now in order to avoid the ... provision’s consequences. ”). . See In re MTBE Prods. Liab. Litig., No. 00 MDL 1898, 2007 WL 1601491, at *6 (S.D.N.Y. June 4, 2007) (holding — under New York law — that \"a plaintiff’s claims accrue when it first knows of both (1) the presence of MTBE at a level sufficient to constitute an injury and (2) the harmful impact of MTBE on drinking water.”). Notably, Exxon Mobil intends to argue at trial that the claims for Station Six are already time-barred. . 36 N.Y. Jur.2d Damages, § 113. . 273 N.Y. 119, 125, 7 N.E.2d 10 (1937). ."
},
{
"docid": "17156502",
"title": "",
"text": "“in the presence of disparate factual circumstances”); Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 248-49 (3d Cir.1975) (emphasizing eohesiveness requirement for (b)(2) actions); O’Connor v. Boeing Inc., 197 F.R.D. 404, 413 (C.D.Ca.2000) (decertifying (b)(2) medical monitoring class because “individual variances” caused the court to conclude that “maintaining a class action on longer provides for judicial economy or the fair determination of [the] controversy”). Here, defendants have successfully rebutted Rule 23(b)(2)’s presumption of homogeneity by demonstrating the existence of individualized issues. First, the evidence indicates that the level at which people perceive the presence of MTBE in water varies significantly. EPA studies show that “[n]ot all individuals respond equally to taste and odor because of differences in individual sensitivity.” 12/97 EPA Drinking Water Advisory: Consumer Acceptability Advice and Health Effects Analysis on Methyl Tertiary-Butyl Ether (“12/97 EPA Rpt.”), Ex. 48 to Jt.App., at 25 (reporting a range in perception of 15 to 180 micrograms per liter or ppb for odor, and 24 to 135 ppb for taste). Indeed, one named plaintiff, O’Brien, testified that he could not taste MTBE in his water at a concentration of 83.9 ppb, which far exceeds New York’s M.C.L. § of 10 ppb for drinking water. See 9/19/00 Deposition of O’Brien (“O’Brien Dep.”), Ex. 18 to Jt.App., at 76. Yet, the proposed class would include all individuals whose wells contain “detectable” MTBE, which has been defined by current technology as .1 ppb. See supra Part II.B. There are also differences in the level of contamination that the named plaintiffs allege, the source of the contamination, how the contamination affects each plaintiff, and the nature of relief that each will require. For example, several named plaintiffs have MTBE in their wells at levels far below the state MCLs. See id. The Reynolds’ well, on the other hand, contains MTBE at a level of 1500 ppb. See id. The alternate water system provided to Young meets her needs, but she seeks to have the use and enjoyment of her well restored. See id. In contrast, the Christensens drink bottled water because they feel that they cannot"
},
{
"docid": "21930481",
"title": "",
"text": "Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). . See id. (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505). . U.S. Const, art. Ill, § 1. . See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (standing requirements serve to \" 'identify those disputes which are appropriately resolved through the judicial process’ \") (quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). . Id. at 561, 112 S.Ct. 2130. . The other two requirements are that the plaintiff's injury must be \"fairly traceable” to the defendant's alleged conduct, and it must be likely that the injury will be \"redressed by a favorable decision.” Id. . Id. (quotation marks and citations omitted). . Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 191, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). . See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct 691, 7 L.Ed.2d 663 (1962). . Lujan, 504 U.S. at 561, 112 S.Ct. 2130. . Id. (quotation marks and citations omitted). . See 10 N.Y. Comp.Codes R. & Regs. § 5-l.l(al) (2006) (\"MCL means the maximum permissible level of a contaminant in water which is delivered to any user of a public water system.”); California Health & Safety Code § 116275(f) (\"[MCL] means the maximum permissible level of a contaminant in water.”). . 10 N.Y. Comp.Codes R. & Regs. § 5-1.52, Table 3. Prior to December 24, 2003, the applicable New York MCL for MTBE was 50 ppb. . See Def. Mem. (OCWD) at 1. Defendants' motion is limited only to those claims relating to detection below the Secondary MCL. See id. at 10 n. 7 (\"Although not an issue in this motion, defendants do not concede that damages are recoverable based on detections above the Secondary MCL of 5 ppb but below the Primary MCL of 13 ppb.”). Ultimately, the difference between California's two MCLs or between the New York and California MCLs is not relevant to the question of whether the MCL generally defines what"
},
{
"docid": "3356177",
"title": "",
"text": "it remains upon or under his lands; it is the usufructuary right, the same as in flowing water. He has the right to the use of the water, but he has no property in the water as such; and the measure of his damages ... is the decreased fee or rental value of the property with the water withdrawn.”). . In re MTBE Prods. Liab. Litig., 475 F.Supp.2d 286, 295 (S.D.N.Y.2006) (quotation marks omitted). . Id. On the other hand, \"where MTBE was present at low levels or located in areas that did not, at that time, threaten the groundwater, [the District] suffered no appreciable harm.” Id. . In re MTBE Prods. Liab. Litig., 568 F.Supp.2d at 381 (quoting Mark S. Dennison, Recovery of Damages For Injury to Landowner’s Property from Environmental Condition on Neighboring Land, 37 Am.Jur. Proof of Facts 3d 439, § 10(2008)). . McDougald v. Garber, 73 N.Y.2d 246, 254, 538 N.Y.S.2d 937, 536 N.E.2d 372 (1989). . In re MTBE Prods. Liab. Litig., 568 F.Supp.2d at 379 (quotation marks omitted). . Id. (quotation marks omitted). . Okraynets v. Metropolitan Transp. Auth., 555 F.Supp.2d 420, 444 (S.D.N.Y.2008). . E.g., Schultz v. Harrison Radiator Div. General Motors Corp., 90 N.Y.2d 311, 320-21, 660 N.Y.S.2d 685, 683 N.E.2d 307 (1997); Cumming v. Brooklyn City R.R. Co., 109 N.Y. 95, 98, 16 N.E. 65 (1888). See generally Joseph H. Ring, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1371-72 (1981). . Reichman v. Warehouse One, Inc., 173 A.D.2d 250, 569 N.Y.S.2d 452, 453 (1st Dep't 1991) (quoting 36 N.Y. Jur.2d Damages, § 15). . Id. . See Steitz v. Gifford, 280 N.Y. 15, 20, 19 N.E.2d 661 (1939) (\"In actions in tort, there are certain well-settled and universally recognized rules relating to damages recoverable ... [including that] [Reasonable certainty as to the amount ... is required.”). See also Behrens v. Metropolitan Opera Ass’n, Inc., 18 A.D.3d 47, 794 N.Y.S.2d 301, 303 (1st Dep't 2005) (\"In tort actions, an injured plaintiff may recover from the defendant all damages directly flowing"
},
{
"docid": "7514442",
"title": "",
"text": "higher percentage of the stations. . In re MTBE Prods. Liab. Litig., Nos. 04 Civ. 4968, 00 Civ. 1898, 2007 WL 700819, at *3 n. 30 (S.D.N.Y. Mar. 7, 2007). . Sosik Rebuttal at 2. . See id. Investigations in Long Island have identified MTBE plumes between six thousand and nine thousand feet long, and have also documented that the plumes will travel at a rate of 0.012 to 0.15 feet downward for each foot of distance traveled horizontally from the spill source. See Sosik Report at 6. . Sosik Rebuttal at 2. . Sosik Report at 1-2. . Under Article 12 of the New York Navigation Law and the Petroleum Bulk Storage Regulations, 6 NYCRR § 613.8, all petroleum spills in New York must be reported to the NYSDEC within two hours of discovery, except spills where the quantity is known to be less than five gallons, the spill was contained and under control of the spiller, the spill has not and will not reach the State’s water or any land, and the spill is cleaned up within two hours of discovery. . See Sosik Report at 10. . Id. . Sosik Rebuttal at 1. . Sosik explains that he looked for BTEX as well as MTBE because often site investigations did not test for MTBE before 1994. Another reason is that sometimes spills were reported long after they actually occurred, in which case all the MTBE may have already migrated off the site. See Sosik Report at 10. . Id. . See id. . Sosik Rebuttal at 1. . Sosik Report at 10. . See id. at 2 (\"In almost all cases a detached plume [of MTBE] will go undetected until it impacts a private or public supply well or is accidentally discovered in a monitoring well installed for some other purpose than tracking the plume in question.”). . Id. . Sosik Rebuttal at 7. . Sosik traced MTBE in a well back to the gasoline spill where the MTBE was released into the environment, not all the way back to its manufacturer. When he identifies a “source\""
},
{
"docid": "17156463",
"title": "",
"text": "Plaintiffs’ wells, and to avoid responsibility for their contamination.” Id. 3. The Extent of MTBE Contamination Most states, including the class states, have reported that they find MTBE in groundwater in at least 20% of samples. See 3/24/00 EPA Rpt. at 10. [ A XXXX-XXXX ] national survey of private drinking wells conducted by the USGS found that 27% of samples taken in shallow, ambient groundwater contained MTBE. See Bedient Rpt. at 2 (citing, in addition, more recent studies which conclude that MTBE poses a “significant risk to the nation’s drinking water supply”). Nevertheless, a recent nationwide study concluded that only one out of 2,243 (mostly public) drinking wells contained MTBE at a concentration above the EPA’s advisory of 20 parts per billion (“ppb”). See USGS Stmt, at 3. Moreover, because plaintiffs seek remediation and other forms of injunctive relief, defendants have presented evidence that the class states have programs in place that have provided, and will continue to provide, adequate remedies, whenever a private well is contaminated with MTBE at or above a given state’s action level or maximum contaminant level (“MCL”). 4. Low Levels of MTBE in Private Wells The focus of this litigation, however, is on private water wells, and levels of MTBE below state action levels or federal advisories. Private wells are subject to very little government regulation, and there are no Federal or state requirements that private wells be tested. See Brown Rpt. at 4. Because private wells tend to be shallower than public wells, they are also more susceptible to contamination by MTBE. See 4/18/01 Deposition of Philip B. Bedient (“4/18/01 Be-dient Dep.”) at 89; Transcript of Hearing (“Tr.”) at 46 (testimony of Bedient). And while state MCLs range from 5 ppb to 70 ppb, some people are able to taste and smell the chemical at levels as low as 0.1 ppb. 1993 Campden Rpt. at 2, 5 (reporting results of study using thirteen “experienced assessors”). Contamination at 0.1 ppb is also the lowest level at which current technology can detect the presence of the compound in water. See Tr. at 89 (testimony of"
},
{
"docid": "21930477",
"title": "",
"text": "treat freon, the subsequent presence of MTBE required it to respond by improving the filtration system. Factual issues regarding why the system was installed, the costs of the improvement, and the extent to which the costs of current filtration are due to MTBE contamination (or to other contaminants) are likely triable issues inappropriate for resolution through summary judgment. On this record it cannot be said that the defendants are entitled to a judgement as a matter of law. Rather, these and similar well specific disputes require further fact development, and potentially briefing, to determine the extent to which genuine issues of fact remain in dispute. IV. CONCLUSION For the reasons set forth above, defendants’ motions for summary judgement are denied. The Clerk of the Court is directed to close these motions (docket #867 and # 1018). SO ORDERED: . See In re Methyl Tertiary Butyl Ether (\"MTBE”) Prods. Liab. Litig., 447 F.Supp.2d 289 (S.D.N.Y.2006); In re MTBE Prods. Liab. Litig., 438 F.Supp.2d 291 (S.D.N.Y.2006); In re MTBE Prods. Liab. Litig., No. M21-88, MDL 1358, 457 F.Supp.2d 324, 2006 WL 1738233 (S.D.N.Y. June 23, 2006); In re MTBE Prods. Liab. Litig., No. M21-88, MDL 1358, 2006 WL 928997 (S.D.N.Y. Apr.7, 2006), motion for reconsideration denied, 2006 WL 1816308 (June 26, 2006); In re MTBE Prods. Liab. Litig., 415 F.Supp.2d 261 (S.D.N.Y.2005); In re MTBE Prods. Liab. Litig., 399 F.Supp.2d 340 (S.D.N.Y.2005); In re MTBE Prods. Liab. Litig., 399 F.Supp.2d 325 (S.D.N.Y.2005); In re MTBE Prods. Liab. Litig., No. M21-88, MDL 1358, 2005 WL 1529594 (S.D.N.Y. June 28, 2005); In re MTBE Prods. Liab. Litig., No. M21-88, MDL 1358, 2005 WL 1500893 (S.D.N.Y. June 24, 2005); In re MTBE Prods. Liab. Litig., 402 F.Supp.2d 434 (S.D.N.Y.2005); In re MTBE Prods. Liab. Litig., 399 F.Supp.2d 242 (S.D.N.Y.2005); In re MTBE Prods. Liab. Li-tig., 233 F.R.D. 133 (S.D.N.Y.2005); In re MTBE Prods. Liab. Litig., 379 F.Supp.2d 348, 364 (S.D.N.Y.2005); In re MTBE Prods. Liab. Litig., No. M21-88, MDL 1358, 2005 WL 106936 (S.D.N.Y. Jan.18, 2005); In re MTBE Prods. Liab. Litig., No. M21-88, MDL 1358, 2005 WL 39918 (S.D.N.Y. Jan.6, 2005); In re MTBE"
},
{
"docid": "17156534",
"title": "",
"text": "knew it, see MTBE I, 175 F.Supp.2d at 600-01 (detailing the white papers circulated within the industry reporting on the harmful effects of MTBE, the widespread contamination, and the availability of safer alternatives) (citing MC 1111 66-137). See also Plaintiffs’ Preliminary Trial Plan (\"Trial Plan” or \"PI. Tr. Plan”) at 12-32 (presenting evidence that plaintiffs propose to use at a classwide trial to establish defendants’ liability). . \"Ambient” in this context describes groundwater not located near a UST. See Bedient Rpt. at 2. . In New York, for example, regional offices of the Department of Environmental Conservation (\"New York DEC”) collect samples from private wells at no cost to the owner whenever MTBE contamination is suspected. See \"Private Well Policies for Eighteen States in Complaint” (“Def. States Rpt.\"), Ex. 4 to Expert Report of Defendants' Expert, Robert H. Harris, Ph. D. (\"Harris Rpt.”), Ex. 14 to Jt.App., at 1. New York has set an M.C.L. § of 50 ppb for MTBE, at or above which the State will initiate cleanup and pay the costs necessary to mitigate risks to the homeowner. See \"State Standards or Guidelines for MTBE in Ground Water” (“Def. M.C.L. § Rpt.”), Ex. 3 to Harris Rpt., at 1. In addition, New York considers water contaminated at a level at or above 10 ppb to be unpotable. See id. The remaining class states have similar programs and cleanup funds, see Def. States Rpt. at 1, and have set MCLs as follows: 70 ppb (Illinois); 13 ppb for health, and 5 ppb for taste/odor (California); 500 ppb for \"low yield” ground-water and 50 ppb for drinking water (Florida). See Def. M.C.L. § Rpt. 1. . The defendants presented contrary evidence on this point. . The Reynolds’ well water also contains coli-form, another contaminant. See Reynolds Dep. at 28. . Plaintiffs would present evidence regarding the following classwide issues: (1) MTBE's chemical, fate and transport characteristics; (2) defendants' economic motives in choosing MTBE; (3) MTBE's interference with the use and enjoyment of plaintiffs' property; (4) foreseeability of MTBE's environmental consequences; (5) defendants' knowledge of MTBE's characteristics; (6) each defendant's"
},
{
"docid": "17156464",
"title": "",
"text": "state’s action level or maximum contaminant level (“MCL”). 4. Low Levels of MTBE in Private Wells The focus of this litigation, however, is on private water wells, and levels of MTBE below state action levels or federal advisories. Private wells are subject to very little government regulation, and there are no Federal or state requirements that private wells be tested. See Brown Rpt. at 4. Because private wells tend to be shallower than public wells, they are also more susceptible to contamination by MTBE. See 4/18/01 Deposition of Philip B. Bedient (“4/18/01 Be-dient Dep.”) at 89; Transcript of Hearing (“Tr.”) at 46 (testimony of Bedient). And while state MCLs range from 5 ppb to 70 ppb, some people are able to taste and smell the chemical at levels as low as 0.1 ppb. 1993 Campden Rpt. at 2, 5 (reporting results of study using thirteen “experienced assessors”). Contamination at 0.1 ppb is also the lowest level at which current technology can detect the presence of the compound in water. See Tr. at 89 (testimony of Bedient). 5. The Named Plaintiffs The named plaintiffs each use or own a private water well that has tested positive for MTBE. Five are from New York, including the named plaintiffs in O’Brien and Berrian. The three named plaintiffs in England are from Illinois and California, and the named plaintiff in Young is from Florida. See PI. Tr. Plan at 5. a. O’Brien (New York) Robert O’Brien is a resident of New York and private well owner in Laurel, New York. See Defendants’ Report on Robert O’Brien (“Def. O’Brien Rpt.”), Ex. 17-A to Jt.App., at 2. In April 1997, tests done on O’Brien’s well indicated that it was contaminated at a concentration of 75 ppb. See MTBE I, 175 F.Supp.2d at 604; Def. O’Brien Rpt. at 3. In nine of the ten tests done on O’Brien’s well since May 19, 1997, however, O’Brien’s well has not shown the presence of any MTBE. See Def. O’Brien Rpt. at 3. Like all of the named plaintiffs, however, O’Brien has no guarantee of future testing. b. Reynolds (New"
},
{
"docid": "21930485",
"title": "",
"text": "No. Ol-Civ-1271, 2006 WL 1875965 (N.C.Super. June 30, 2006). . 944 F.Supp. 448 (E.D.N.C.1996). . Adams, 2006 WL 1875965, at *31. . Id. (quotation marks and citations omitted). .See PL Mem. (N.Y.) at 18; Plaintiff’s Opposition to Defendants' Motion for Summary Judgment of Plaintiff's Claims for Damages Based on MTBE Detections Below the Secondary MCL (''Pl.Mem.(OCWD)”) at 3. The New York water purveyor plaintiffs argue that their duty to monitor and treat contamination is not limited to instances where the MCL is exceeded, but also where there is \"any deleterious change in raw water quality.” 10 N.Y. Comp.Codes R. & Regs. § 5-1.12. OCWD argues that its duty is to \"investigate and remediate 'any threatened or existing contamination of, or pollution to, the surface or groundwaters of the district' \" and that it is statutorily authorized to recover such costs. PL Mem. (OCWD) at 3 (quoting Cal. Water Code, app. § 40-8(b)). . This Opinion does not consider whether, and to what extent, individual, private well owners (nor water consumers) may be damaged by contamination below the applicable MCL. The essential point here, is that the analyses from cases holding that private well owners do not have standing to sue for contamination below the MCL are not controlling with regard to public water suppliers and municipalities or state regulatory agencies. Indeed, individual well owners (and likewise, water consumers) may well have a different legally protected interest than providers of water or regulatory agencies. . 45 F.Supp.2d 934 (S.D.AIa.1999). . Id. at 942. . See id. at 940 (\"[Plaintiff] decided to install the [filter system] in order to improve the clarity and taste of the City's drinking water so that the City could maintain its competitive advantage over bottled water producers. Atrazine removal was no more than an ancillary benefit.”). See also id. at 941 (noting that \"there is no evidence tending to show that [plaintiff] installed its [granulated active carbon filter ('GAC') ] program in order to remove Atrazine from its drinking water. Rather, it [was] ... to maintain the City's competitive edge over bottled water manufacturers”). . See id."
},
{
"docid": "7514441",
"title": "",
"text": "to Declaration of Robin Greenwald in Support of Plaintiffs' Memorandum of Law in Opposition to Def II. (\"Greenwald Decl.”) at 43 (noting that while major oil companies began to upgrade UST systems in the 1980s, many small station owners did not upgrade until the late 1990s). . U.S. General Accounting Office, Pub. No. GAO-Ol-464, Environmental Protection: Improved Inspections and Enforcement Would Better Ensure the Safety of Underground Storage Tanks (May 4, 2001) at 2. . 10/31/07 Rebuttal Report of Charles B. Sosik (\"Sosik Rebuttal”), Ex. B to Greenwald Deck, at 7. . USEPA MTBE Pilot Project — Objective 2: Investigate Potential Sources of MTBE Contamination on Long Island That Could Impact Water Supplies or Environmentally Sensitive Areas, January 2008, at ii. Again, neither party cites this study, but there is no reason to believe it is inaccurate. It is admissible as a report of a public agency. See Fed.R.Evid. 803(8)(A). . See USEPA MTBE Pilot Project. . See id. at 5. . See id. MTBE was found at levels below the MCL at a much higher percentage of the stations. . In re MTBE Prods. Liab. Litig., Nos. 04 Civ. 4968, 00 Civ. 1898, 2007 WL 700819, at *3 n. 30 (S.D.N.Y. Mar. 7, 2007). . Sosik Rebuttal at 2. . See id. Investigations in Long Island have identified MTBE plumes between six thousand and nine thousand feet long, and have also documented that the plumes will travel at a rate of 0.012 to 0.15 feet downward for each foot of distance traveled horizontally from the spill source. See Sosik Report at 6. . Sosik Rebuttal at 2. . Sosik Report at 1-2. . Under Article 12 of the New York Navigation Law and the Petroleum Bulk Storage Regulations, 6 NYCRR § 613.8, all petroleum spills in New York must be reported to the NYSDEC within two hours of discovery, except spills where the quantity is known to be less than five gallons, the spill was contained and under control of the spiller, the spill has not and will not reach the State’s water or any land, and the spill"
},
{
"docid": "3356171",
"title": "",
"text": "of James J. Roberts, expert for the City, at 72:15-21, Ex. 3 to Campins Decl. . For example, Exxon emphasizes that the City received a recommendation in 1987 to abandon all of the Station 6 wells, long before MTBE was detected. See JPTO II at 10. .The City emphasizes that a 2003 USGS analysis of 275 organic and inorganic constituents in fifty Brooklyn and Queens wells reported MTBE to be the most frequently detected contaminant. See JPTO II at 4. The City also notes that a defense expert of a settling party stated in his report that \"MTBE is ubiquitous in the Region’s shallow aquifers.” See 3/9/09 Expert Report of James A. Schaeffer, expert for defendant Getty Properties Corporation, Ex. L to 5/26/09 Declaration of Daniel Greene, counsel for the City (\"Greene Decl.”). Another defense expert testified that the City’s groundwater system has “by far” more MTBE contamination than in typical communities using public supply wells. See 1/30/09 Deposition of Dr. Fletcher G. Driscoll, at 174:20-177:8, Ex. K to Greene Decl. . The parties dispute the questions that should be put to the jury at the end of each phase. Nothing in the following description is intended to resolve any of these disputes. . See JPTO II at 10-11. . See id. . See id. . See Fed.R.Evid. 402. . Fed.REvid. 401. . United States v. Ozsusamlar, 428 F.Supp.2d 161, 164 (S.D.N.Y.2006). . United States v. Chan, 184 F.Supp.2d 337, 340 (S.D.N.Y.2002). . Palmieri v. Defaria, 88 F.3d 136, 139 (2d Cir.1996) (quoting Luce v. United States, 469 U.S. 38, 41-42, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984)). . U.S. Const, art. Ill, § 1. . See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). . Id. at 561, 112 S.Ct. 2130. . Id. (quotation marks and citations omitted). Accord Heckler v. Mathews, 465 U.S. 728, 736, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984) (requiring \"actual or threatened injury” (quotation marks omitted)). The other two requirements are"
},
{
"docid": "3356169",
"title": "",
"text": "in all other respects. The Clerk of the Court is directed to close this motion (No. 04 Civ. 3417, document 95; No. 00 MDL 1898, document 2306). SO ORDERED. . This Opinion assumes familiarity with facts discussed in this Court's previous opinions in this case. For a general discussion of the MTBE litigation, see In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 379 F.Supp.2d 348, 364-67 (S.D.N.Y.2005). . See Memorandum of Law in Support of Defendants' Joint Motion In Limine to Exclude Evidence and Argument Regarding Plaintiff's Past and Future Investigation and Treatment Costs Until It Proves Actual Injury (\"Def. Mem.”). . See Joint Pretrial Order for Phase II (\"JPTO II”) at 5. . See id. . See JPTO II at 5. Exxon recently contested whether the City owns the groundwater system and is the proper plaintiff in this case. On July 6, 2009, this Court resolved any potential dispute by joining the New York City Water Board Authority and the New York City Municipal Water Finance Authority as necessary plaintiffs. See Order, No. 337, City of New York v. Amerada Hess Corp., No. 00 MDL 1898, 04 Civ. 3417 (S.D.N.Y. July 6, 2009). For ease of understanding, I will continue to use \"the City” to refer to all three plaintiffs. . See JPTO II at 5. . N.Y. Gen. City Law § 20(2). . See JPTO II at 5. . See id. On May 13, 2008, the DEC renewed this permit for an additional eleven years. The current permit authorizes the City to operate sixty-eight wells in the system, including the five at issue in this trial. See id. . See id. at 8. . See id. . See id. . See id. at 10. . See id. at 6. . See id. . See id. . See id. . See id. at 8. . See id. . See id. . See id. at 7-8. . See 4/22/09 Deposition of William A.T. Meakin, expert for the City, at 222:22-23, Ex. 4 to 5/26/09 Declaration of Nicholas G. Cam-pins, counsel for the City (\"Campins Decl.\"). . See 4/17/08 Deposition"
},
{
"docid": "21930476",
"title": "",
"text": "to various customer complaints regarding taste and odor which they have investigated, and argue that such complaints likely resulted from MTBE contamination. However, plaintiffs have not presented any evidence (other than statements of their belief) that such complaints are actually due to MTBE contamination. Unless plaintiffs can produce evidence that these complaints are due to MTBE contamination, such speculation will be insufficient to defeat summary judgment in favor of defendants as to plaintiffs’ claimed injuries relating to taste and odor. Plaintiffs also complain that they have been injured by increased monitoring, testing, and treatment costs, and in some instances have been forced to shut down certain wells because of contamination. With respect to several wells, the parties dispute whether treatment procedures have been taken because of MTBE or other contaminants. For example, defendants contend that United Water New York’s (“UWNY”) costs associated with one well’s treatment (Tallman 26) are related to earlier freon contamination rather than as a result of any MTBE contamination. However, UWNY notes that while the treatment system was originally installed to treat freon, the subsequent presence of MTBE required it to respond by improving the filtration system. Factual issues regarding why the system was installed, the costs of the improvement, and the extent to which the costs of current filtration are due to MTBE contamination (or to other contaminants) are likely triable issues inappropriate for resolution through summary judgment. On this record it cannot be said that the defendants are entitled to a judgement as a matter of law. Rather, these and similar well specific disputes require further fact development, and potentially briefing, to determine the extent to which genuine issues of fact remain in dispute. IV. CONCLUSION For the reasons set forth above, defendants’ motions for summary judgement are denied. The Clerk of the Court is directed to close these motions (docket #867 and # 1018). SO ORDERED: . See In re Methyl Tertiary Butyl Ether (\"MTBE”) Prods. Liab. Litig., 447 F.Supp.2d 289 (S.D.N.Y.2006); In re MTBE Prods. Liab. Litig., 438 F.Supp.2d 291 (S.D.N.Y.2006); In re MTBE Prods. Liab. Litig., No. M21-88, MDL 1358, 457"
}
] |
262943 | ". Citations to ""Tr.._.” refer to the transcript of the sentencing hearing on December 14, 2001. . The final judgment provided: “The Defendant is Prohibited from viewing television. A television may be allowed in an area where the Defendant’s wife and daughters only may have access, in a daughter’s room.’’ Judgment at 2. . ""[D]espite the continuous use of the ... conjunctive 'and' [in the Guidelines provision, and] taking into account the authorizing statutes, a condition may be imposed if it is reasonably related to any one or more of the specified factors.” Abrar, 58 F.3d at 46 (interpreting the analogous Guidelines provision governing conditions of supervised release); see also United States v. Sicker, 239 F.3d 289, 291 (3d Cir.2000); REDACTED United States v. Johnson, 998 F.2d 696, 697-99 (9th Cir.1993). . Section 5B1.3(b)(2) imposes a distinct requirement that the deprivation be no greater than reasonably necessary. Sofsky, 287 F.3d at 126. . While any additional increment of punishment could arguably be said to promote respect for the law or deter crime, nothing in the record suggests that the district court imposed the television bar in furtherance of these statutory goals. The district court did not connect the condition to the nature and circumstances of Bello's offense. See U.S.S.G. § 5B 1.3(b)(1)(A). . In general, Guidelines commentary must be given controlling weight unless it is plainly erroneous, inconsistent with a directive of Congress, or unconstitutional. Stinson v. United States," | [
{
"docid": "23103495",
"title": "",
"text": "the United States Sentencing Commission (Commission). In imposing a sentence, a court shall consider: (1) the nature and circumstances of the offense and the defendant’s history and characteristics; and (2) the need for the sentence to (A) reflect the gravity of the offense, promote respect for the law, and justly punish the defendant for the unlawful behavior, (B) adequately deter criminal behavior, (C) protect the public, and (D) effectively provide necessary educational or vocational training, medical attention, or other correctional treatment. See 18 U.S.C. § 3553(a)(1), (2)(A)-(D) (1998). These factors are equally applicable considerations in the imposition of a term of supervised release under 18 U.S.C. § 3583(c), which expressly adopts each of the above-stated factors with the exception of (2)(A). Section 5D1.3(b) of the United States Sentencing Guidelines Manual (U.S.S.G.), which also addresses conditions of supervised release, mirrors § 3583(c)’s adoption of § 3553(a). Furthermore, § 5D1.3(b) directs that the imposed conditions should not deprive the party of his or her liberty any more than is reasonably necessary to fulfill the purposes of Congress and the Commission. See U.S. Sentencing Guidelines Manual § 5D1.3(b) (1998). Finally, in order to impose the special condition of participation in a mental health program, the court must have reason to believe the party is in need of such treatment. See U.S. SENTENCING GUIDELINES MANUAL § 5D1.3(d)(5) (1998). In United States v. Prendergast, 979 F.2d 1289 (8th Cir.1992), the defendant pleaded guilty to state counts of theft by deception and federal counts of devising a scheme to sell fraudulent promissory notes over phone lines in violation of 18 U.S.C. § 1343. The court added special conditions to Prendergast’s supervised release requiring him to abstain from using alcohol and other controlled substances and forcing him to submit to random drug testing and warrantless searches to determine the presence of alcoholic beverages or controlled substances. This court concluded that the special conditions had no reasonable relationship to the goals of rehabilitation and protection. No evidence existed suggesting that the defendant suffered from alcoholism or that the use of alcohol in any way contributed to the offense"
}
] | [
{
"docid": "23328386",
"title": "",
"text": "close question whether a defendant should be permitted to raise Hague Convention defenses when, for instance, there is a parallel or ongoing civil proceeding under the Convention and its implementing legislation, we do not need to decide that question in this case. The District Court acted properly in restricting Ahmed to the three available affirmative defenses found in section 1204(c) of the Act. IV. Special Condition of Supervised Release Ahmed next objects to the District Court’s imposition of the following special condition of supervised release: “[T]he defendant [must] effect the return of the children to the United States to Mona Amer.” He contends that (a) the District Court exceeded its authority under the Sentencing Guidelines provisions concerning appropriate conditions of supervised release, (b) this condition is inconsistent with the Sentencing Commission’s intent that the abducting parent not be punished for the length or duration of his retention of the children, (e) re-imprisonment following a violation of the condition would constitute double jeopardy, (d) the condition is impossible to meet, and (e) the condition violates the Egyptian court order granting Ahmed custody over the children. We discuss each objection in turn. (a) Guidelines limitations. Ahmed contends that the “return” condition exceeds the sentencing court’s authority under 18 U.S.C. § 3583 and U.S.S.G. § 5D1.3(b). Although sentencing courts have “broad discretion to tailor conditions of supervised release to the goals and purposes outlined in § 5D1.3(b),” this provision does not provide sentencing courts with “untram-melled discretion” in this regard. United States v. Abrar, 58 F.3d 43, 46-47 (2d Cir.1995). Specifically, section 5D1.3(b) provides: The court may impose other conditions of supervised release, to the extent that such conditions are reasonably related to (1) the nature and circumstances of the offense and the history and characteristics of the defendant, and (2) the need for the sentence imposed to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. See 18 U.S.C. §§ 3553(a)(2) and 3583(d)."
},
{
"docid": "22164418",
"title": "",
"text": "without notification, failed to report, and failed to submit a monthly supervision report. He was arrested on December 22, 2003. The court dismissed the first two allegations (regarding the urine samples) and sentenced Stephens to four months in custody and two years supervised release on the remaining allegations. The court reimposed the same special conditions at issue. Stephens was released from custody on June 9, 2004, to a community corrections center where he is again subjected to urinalysis testing. III. The district court’s application of the Sentencing Guidelines is reviewed de novo. United States v. Nielsen, 371 F.3d 574, 582 (9th Cir.2004). A district court’s decision to impose an available condition of supervised release is typically reviewed for abuse of discretion. United States v. Johnson, 998 F.2d 696, 697 (9th Cir.1993); United States v. Gallaher, 275 F.3d 784, 793 (9th Cir.2001) (district court has discretion to impose condition reasonably related to factors set out in 18 U.S.C. § 3553(a)). IV. The statute governing the mandatory conditions of supervised release, 18 U.S.C. § 3583(d), provides in part that: The court shall also order, as an explicit condition of supervised release, that the defendant refrain from any unlawful use of a controlled substance and submit to a drug test within 15 days of release on supervised release and at least 2 periodic drug tests thereafter (as determined by the court) for use of a controlled substance. The condition stated in the preceding sentence may be ameliorated or suspended by the court as provided in section 3563(a)(4). (emphasis added). The sentencing guideline provision governing mandatory conditions of supervised release, U.S.S.G. § 5D1.3(a)(4), similarly requires that: the defendant shall refrain from any unlawful use of a controlled substance and submit to one drug test within 15 days of release on probation and at least two periodic drug tests thereafter (as determined by the court) for use of a controlled substance, but the condition stated in this paragraph may be ameliorated or suspended by the court for any individual defendant if the defendant’s pre-sentence report or other reliable information indicates a low risk of future"
},
{
"docid": "23679343",
"title": "",
"text": "it, “we will not reverse if it can be determined from the record to have been reasoned and reasonable.” United States v. Lee, 957 F.2d 770, 774 (10th Cir.1992). We are not without guidance, however. The Sentencing Guidelines, U.S.S.G. §§ 5D1.1, 5D1.2, 5D1.3, and its policy statements promulgated in U.S.S.G. ch. 7, which mirror the statutes, 18 U.S.C. §§ 3583(a) and 3553(a), and case law govern the goals of a term of supervised release and the validity of the conditions which may be attached. Although a sentencing “court enjoys broad discretion in setting a condition of supervised release,” United States v. Edgin, 92 F.3d 1044, 1047 (10th Cir.1996) (citations omitted), 18 U.S.C. § 3583(a), that discretion is guided by the factors set forth in 18 U.S.C. § 3553(a) and enumerated in 18 U.S.C. § 3583(d). To assure that a “court shall impose a sentence sufficient, but not greater than necessary,” the sentencing court must consider, in part: (1) the nature and circumstances of the offense and the history and characteristics of the defendant. (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to 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; ... 18 U.S.C. § 3553(a). While the district court then shall consider “a multitude of factors ... when determining the appropriate sentence in [revocation of supervised release], [n]o single factor necessarily predominates over any other, and the statutory language, ‘The court ... shall consider,’ evidences that none of them, whenever applicable, should be ignored altogether.” United States v. Marvin, 135 F.3d 1129, 1136 (7th Cir.1998) (italics in original). Thus, a condition that is “reasonably related” to these factors, “involves no greater deprivation of liberty than is reasonably necessary,” and is “consistent with pertinent policy statements” of the Sentencing Commission, 18 U.S.C. § 3583(d)(1), (2), (3), will"
},
{
"docid": "23184951",
"title": "",
"text": "in U.S.S.G. § BDl^O)),. which guides the court’s discretion in the imposition of supervised release. We must decide whether the district court correctly considered the factors set forth in section 5D1.3(b) before imposing conditions of supervised release. Discussion A. A district court’s decision to impose an available condition of supervised release is typically reviewed for abuse of discretion. United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991), However, Johnson’s claim is a challenge to the interpretation and application of the sentencing guidelines which we review de novo. United States v. Blaize, 959 F.2d 850, 851 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 2954, 119 L.Ed.2d 576 (1992). Johnson reads section 5D1.3(b) as requiring that conditions of supervised release be reasonably related tq each of the items listed in the section: To the nature and circumstances of the offense and to the history and characteristics of the defendant and to the need to deter crimes and to the need to protect the public and'to the need to help the defendant. Because the conditions here weren’t related to “the nature and circumstances of the offense,” Johnson argues they were invalid. But the items listed in 5D1.3(b) aren’t necessary elements, each of which has to be present. They are merely factors to be weighed, and the conditions imposed may be unrelated to one or more of the factors, so long as they are sufficiently related to the others. This is made clear by the statutory provisions that underlie section 5D1.3(b) — 18 U.S.C. §§ 3553 and 3583. Entitled “[flac- tors to be considered in imposing a .sentence,” 18 U.S.C. § 3558(a) states that when imposing a sentence the court shall consider: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the"
},
{
"docid": "23328387",
"title": "",
"text": "Egyptian court order granting Ahmed custody over the children. We discuss each objection in turn. (a) Guidelines limitations. Ahmed contends that the “return” condition exceeds the sentencing court’s authority under 18 U.S.C. § 3583 and U.S.S.G. § 5D1.3(b). Although sentencing courts have “broad discretion to tailor conditions of supervised release to the goals and purposes outlined in § 5D1.3(b),” this provision does not provide sentencing courts with “untram-melled discretion” in this regard. United States v. Abrar, 58 F.3d 43, 46-47 (2d Cir.1995). Specifically, section 5D1.3(b) provides: The court may impose other conditions of supervised release, to the extent that such conditions are reasonably related to (1) the nature and circumstances of the offense and the history and characteristics of the defendant, and (2) the need for the sentence imposed to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. See 18 U.S.C. §§ 3553(a)(2) and 3583(d). This Circuit has ruled that “despite the continuous use of the ... conjunctive ‘and’ in § 5D1.3(b), taking into account the authorizing statutes, a condition may be imposed if it is reasonably related to any one or more of the specified factors.” Abrar, 58 F.3d at 46. The “return” condition is obviously closely related to “the nature and circumstances of the offense” of child abduction and “the history and characteristics” of Ahmed. Indeed, it is difficult to imagine a condition more closely tailored to the crime and the criminal in question than this one. Moreover, the requirement that Ahmed return the children serves the goal of general deterrence. As the District Court put it, It seems that often in cases such as this, a vindictive parent may be willing to possibly face a modest prison term in order to keep the children from the spouse. But if the parent recognizes that the Court has a legal mechanism to additionally order the return of the children, then recognizing that may well serve as an additional deterrent."
},
{
"docid": "22273544",
"title": "",
"text": "rather than just one. For these reasons, sufficient evidence supports Armel’s conviction. III. Armel also challenges certain special conditions the district court imposed in connection with his three-year term of supervised release — prohibitions against possession of pornography, entry into establishments where pornography is available, and contact with children; as well as directions that he undergo invasive sex-offender tests. “District courts have broad latitude to impose conditions on supervised release,” and so we review such conditions only for abuse of discretion. United States v. Dotson, 324 F.3d 256, 259, 260 (4th Cir.2003). The sentencing court may impose any condition “reasonably related” to the factors referred to in 18 U.S.C. § 3583(d)(1), which include “the nature and circumstances of the offense and the history and characteristics of the defendant,” id. § 3553(a)(1); “protecting] the public from further crimes,” id. § 3553(a)(2)(C); and “providing] the defendant with needed ... medical care[ ] or other correctional treatment,” id. § 3553(a)(2)(D). But special conditions must “involve[] no greater deprivation of liberty than is reasonably necessary” to achieve the goals enumerated in § 3553(a). 18 U.S.C. § 3583(d)(2). “Although the discretion thus conferred is broad,” an appellate court “will carefully scrutinize unusual and severe conditions.” United States v. Sofsky, 287 F.3d 122, 126 (2d Cir.2002) (internal quotation marks omitted). “The [district] court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence....” 18 U.S.C. § 3553(c). Accordingly, the court must explain the rationale for the special conditions it imposes. See United States v. Warren, 186 F.3d 358, 366 (3d Cir.1999) (“[C]ourts of appeals have consistently required district courts to set forth factual findings to justify special ... conditions.”); United States v. Kingsley, 241 F.3d 828, 836 (6th Cir.2001). While the district court in this case accurately described the special conditions as “very rigid,” it offered no explanation as to their necessity in Armel’s case. See 18 U.S.C. § 3553(c). Accordingly, we have no basis for determining whether they are reasonably related to the factors referred to in 18 U.S.C. § 3583(d)(1) and “involve[ ] no greater"
},
{
"docid": "23611342",
"title": "",
"text": "error of law constitutes an abuse of discretion. See United States v. Johnson, 446 F.3d 272, 277 (2d Cir.2006). A challenge to conditions of supervised release that presents an issue of law is generally reviewed de novo, id., but we review Dupes’s claims for plain error because he failed to raise them before the district court at sentencing. United States v. Sofsky, 287 F.3d 122, 125 (2d Cir.2002). Under the plain error standard, before an appellate court can correct an error not raised below, there must be (1) an error, (2) that is plain and (3) that affects substantial rights. If these conditions are met, an appellate court may then exercise its discretion to correct the error, but only if it seriously affects the fairness, integrity or public reputation of judicial proceedings. See id. at 125 n. 2 (citing Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999)). B. Merits 1. The Double Jeopardy Claim The Double Jeopardy Clause protects a defendant from successive punishments for the same criminal offense. United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Dupes claims that the district court violated the prohibition against double jeopardy by imposing a punishment relating to the two sex offenses for which he previously had been sentenced. We cannot agree. The challenged conditions of supervised release are an authorized punishment for Dupes’s securities fraud conviction, not a successive punishment for his prior sex offense convictions. The district court has broad authority pursuant to 18 U.S.C. § 3583(d) to impose any condition of supervised release that it considers to be appropriate, provided such condition;4107;4108;4107;4108is “reasonably related” to certain statutory sentencing factors listed in section 3553(a)(1) and (a)(2) of that title, “involves no greater deprivation of liberty than is reasonably necessary” to implement the statutory purposes of sentencing, and is consistent with pertinent Sentencing Commission policy statements. 18 U.S.C. § 3583(d); Myers, 426 F.3d at 123-124. The factors of section 3553(a)(1) and (a)(2) to which conditions of supervised release must be reasonably related are also set forth in U.S.S.G."
},
{
"docid": "23328388",
"title": "",
"text": "This Circuit has ruled that “despite the continuous use of the ... conjunctive ‘and’ in § 5D1.3(b), taking into account the authorizing statutes, a condition may be imposed if it is reasonably related to any one or more of the specified factors.” Abrar, 58 F.3d at 46. The “return” condition is obviously closely related to “the nature and circumstances of the offense” of child abduction and “the history and characteristics” of Ahmed. Indeed, it is difficult to imagine a condition more closely tailored to the crime and the criminal in question than this one. Moreover, the requirement that Ahmed return the children serves the goal of general deterrence. As the District Court put it, It seems that often in cases such as this, a vindictive parent may be willing to possibly face a modest prison term in order to keep the children from the spouse. But if the parent recognizes that the Court has a legal mechanism to additionally order the return of the children, then recognizing that may well serve as an additional deterrent. The condition also serves the function of specific deterrence. It deters Ahmed both from committing the offense of the unlawful retention of the children in Egypt after his release from prison, and from attempting to kidnap his children again after they have been returned to the United States. (b) Punishment for extent of retenr tion. Ahmed contends that the special condition essentially punishes him for the length or duration of his retention of the children because someone who retained abducted children for only a short period would not face this condition. He argues that this allegedly length-based “enhancement” is inconsistent with the Sentencing Commission’s intent, and points to an analogous provision of the Guidelines — section 2A4.1 governing non-parental kidnapping offenses prosecuted under, among other statutes, 18 U.S.C. § 1201 — as. support. In that guideline, there is a specific offense characteristic that enhances a kidnapper’s sentence based on the length of time that he held the victim. U.S.S.G. § 2A4.1(b)(4)(A)-(B) (increasing offense level by two if victim not released within thirty days and by"
},
{
"docid": "732275",
"title": "",
"text": "and any other condition it considers to be appropriate. The cross-referenced subsections of 18 U.S.C. § 3553(a) direct a district court to consider the following factors: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed (B) to 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[.] We have made clear that the government bears the burden of showing that a discretionary condition of supervised release is appropriate in a given case. See United States v. Weber, 451 F.3d 552, 558-59 (9th Cir.2006). We have also explained that the statutory requirement that conditions of supervised release be reasonably related to the factors set out in § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D) does not mean that every condition must be reasonably related to every factor: “They are merely factors to be weighed, and the conditions imposed may be unrelated to one or more of the factors, so long as they are sufficiently related to the others.” United States v. Johnson, 998 F.2d 696, 697, 699 (9th Cir.1993). Even if a proposed condition meets this requirement, it still must “involve ‘no greater deprivation of liberty than is reasonably necessary for the purposes’ of supervised release” — that is, to achieve deterrence, public protection, or offender rehabilitation. United States v. T.M., 330 F.3d 1235, 1240 (9th Cir.2003) (quoting 18 U.S.C. § 3583(d)(2)). III. On appeal, Sales argues that the inclusion of alcohol in condition # 4 is improper. He maintains that there is no basis for requiring him to submit to alcohol testing and prohibiting him from consuming alcohol. Because Sales did not object to this provision in the district court, we review for plain error. See United States v. Rearden, 349 F.3d 608, 614 (9th Cir.2003). Sales has no history of alcohol abuse, and his acts of counterfeiting did not involve alcohol. However, the record before the district"
},
{
"docid": "9001104",
"title": "",
"text": "indigence prevented her from levying a fine. We agree, however, with Abrar’s contention concerning the supervised release condition. The district court’s only justification for imposing the condition was that Abrar’s failure to repay his debts “is basically taking money from these people. You have no right to do that.” However, the relevant guideline authorizes a sentencing court to impose only conditions that are reasonably related to (1) the nature and circumstances of the offense and the history and characteristics of the defendant, and (2) the need for the sentence imposed to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effec- tive manner. 18 U.S.C. §§ 3553(a)(2) and 3583(d). USSG § 5D1.3(b) (emphasis added). As an initial matter, we are inclined to agree with the Ninth Circuit that despite the continuous use of the (emphasized) conjunctive “and” in § 5D1.3(b), taking into account the authorizing statutes, a condition may be imposed if it is reasonably related to any one or more of the specified factors. See United States v. Johnson, 998 F.2d 696, 697-99 (9th Cir.1993). The statutes cited in § 5D1.3(b), 18 U.S.C. §§ 3553(a)(2) and 3583(d), generally treat the factors outlined in § 5D1.3(b) as matters to be considered in imposing a condition of supervised release. In any event, we fail to perceive how the debt repayment condition imposed in this case reasonably relates to any of these factors. Sentencing courts have broad discretion to tailor conditions of supervised release to the goals and purposes outlined in § 5D1.3(b). See, e.g., United States v. Thurlow, 44 F.3d 46, 47 (1st Cir.) (per curiam) (condition that defendant convicted of theft-related offenses abstain from consuming alcohol permissible because of defendant’s history of substance abuse and use of crime proceeds to purchase alcohol on several occasions), cert. denied, — U.S. -, 115 S.Ct. 1987, 131 L.Ed.2d 874 (1995); United States v. Chinske, 978 F.2d 557, 560 (9th Cir.1992) (conditions that defendant not own firearms,"
},
{
"docid": "6858439",
"title": "",
"text": "Under the Guidelines, \"A district court may impose special conditions of supervised release to the extent that they are 'reasonably related' to (i) the nature and circumstances of the offense and the history and characteristics of the defendant, and (ii) the purposes of sentencing, including the need to afford adequate deterrence, to protect the public from further crimes of the defendant, and to provide the defendant with needed training or treatment.” Id. at 131; U.S.S.G. § 5D1.3(b). The special conditions must also involve \"no greater deprivation of liberty than is reasonably necessary” for these purposes. Germosen, 139 F.3d at 131; U.S.S.G. § 5D1.3(b). In Germosen, the district court based imposition of the search condition upon the fact that Germosen had obstructed justice and persistently lied with respect to his financial records, and, at sentencing, orally limited searches to those \"necessary to secure information ... regarding [Germosen’s] finances.” Id. at 131. We therefore upheld the special condition as both \"reasonably related” and \"reasonably necessary.” Id. at 131-32. Ger-mosen did not consider the Fourth Amendment's implications for probationary searches and thus does not control our outcome here, where neither party relies upon the Guidelines. . We have employed this comparison between a computer and a telephone in several previous cases. In United States v. Sofsky, 287 F.3d 122 (2d Cir.2002), we noted, in striking down a special condition forbidding the defendant from using a computer or the Internet without first seeking approval from his probation officer, that \" 'although a defendant might use the telephone to commit fraud, this would not justify a condition of probation that includes an absolute bar on the use of telephones.’ ” Id. at 126 (quoting United States v. Peterson, 248 F.3d 79, 83 (2d Cir.2001)). . See U.S.S.G. § 5B1.3(a)(5) (\"For any offense, the defendant shall refrain from any unlawful use of a controlled substance and submit to one drug test within 15 days of release on probation and at least two periodic drug tests thereafter (as determined by the court) for use of a controlled substance, but the condition stated in this paragraph may be"
},
{
"docid": "23611343",
"title": "",
"text": "offense. United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Dupes claims that the district court violated the prohibition against double jeopardy by imposing a punishment relating to the two sex offenses for which he previously had been sentenced. We cannot agree. The challenged conditions of supervised release are an authorized punishment for Dupes’s securities fraud conviction, not a successive punishment for his prior sex offense convictions. The district court has broad authority pursuant to 18 U.S.C. § 3583(d) to impose any condition of supervised release that it considers to be appropriate, provided such condition;4107;4108;4107;4108is “reasonably related” to certain statutory sentencing factors listed in section 3553(a)(1) and (a)(2) of that title, “involves no greater deprivation of liberty than is reasonably necessary” to implement the statutory purposes of sentencing, and is consistent with pertinent Sentencing Commission policy statements. 18 U.S.C. § 3583(d); Myers, 426 F.3d at 123-124. The factors of section 3553(a)(1) and (a)(2) to which conditions of supervised release must be reasonably related are also set forth in U.S.S.G. § 5D1.3(b)(l): (A) the nature and circumstances of the offense and the history and characteristics of the defendant; (B) the need for the sentence imposed to afford adequate deterrence to criminal conduct; (C) the need to protect the public from further crimes of the defendant; and (D) the need to provide the defendant with needed educational or vocational train ing, medical care, or other correctional treatment in the most effective manner. U.S.S.G. § 5D1.3(b)(l);4152;4152. A condition of supervised release need only be reasonably related to any one of these factors. United States v. Abrar, 58 F.3d 43, 46 (2d Cir.1995). It was within the district court’s authority to impose the challenged special conditions as part of Dupes’s sentence for his securities fraud offense. Each of the conditions — that Dupes attend sex offender treatment, register as a sex offender, keep a distance from children and the places where they usually congregate, and refrain from using the internet to download child pornography or promote sexual relations with children — is reasonably related to Dupe’s history and"
},
{
"docid": "16447300",
"title": "",
"text": "is no factual record developed as to the specific sex offender treatment program that York will be required to attend, the types of polygraph exams that may be administered, or even the questions that York will likely be required to answer. While the relevant treatment programs or polygraph technology may be somewhat different in 2006, information as to existing programs and polygraph exams is surely available and would have been helpful. A timely objection and the creation of a record would have permitted both the district court and this court to review York’s claims with the benefit of that information. B. Sex Offender Treatment Requirement York argues that because his conviction was for mailing a threatening communication, not for a sex-related crime, the requirement that he participate in a sex offender treatment program imposes a “greater deprivation of liberty than is reasonably necessary” to deter criminal conduct or protect the public. U.S.S.G. § 5D1.3(b). York misunderstands the law. The Sentencing Guidelines do not limit district courts to consideration only of the facts of the crime charged. A sentencing court should consider each defendant’s history, regardless of the nature of the crime of conviction. The judge has the authority to impose any condition of supervised release that is reasonably related to (1) the defendant’s offense, history, and characteristics; (2) the need to deter the defendant from further criminal conduct; (3) the need to protect the public from further crimes by the defendant; and (4) the effective educational, vocational, medical, or other correctional treatment of the defendant. U.S.S.G. § 5D1.3(b)(l); see also 18 U.S.C. § 3583(d)(1); Mansur-Ramos, 348 F.3d at 33; United States v. Peppe, 80 F.3d 19, 23 (1st Cir.1996). Although these factors are connected by the word “and,” see § 3583(d)(1); § 5D1.3(b)(l), “the critical test is whether the challenged condition is sufficiently related to one or more of the permissible goals of supervised release.” Brown, 235 F.3d at 6 (emphasis added); see also United States v. Barajas, 331 F.3d 1141, 1146-47 (10th Cir.2003) (noting that every circuit to have decided the issue has adopted this interpretation notwithstanding the “and”"
},
{
"docid": "23303920",
"title": "",
"text": "period of time. On appeal Balon challenges these conditions incrementally and under various theories, but principally on the grounds that they are not reasonably related to his offense of conviction and constitute a greater deprivation of liberty than reasonably necessary. DISCUSSION Under 18 U.S.C. § 3553(a), “[t]he court, in determining the particular sentence to be imposed, shall consider— (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to 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” Special conditions of supervised release may be imposed to the extent that each condition: (1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), ' (a)(2)(C), and (a)(2)(D); ' (2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and (3) is consistent with any pertinent policy statements issued by the Sentencing Commission .... 18 U.S.C. § 3583(d). These provisions match the supervised release provisions set out in Section 5D1.3(b) of the United States Sentencing Guidelines. Therefore, “sentencing courts have broad discretion to tailor conditions of supervised release to the goals and purposes outlined in § 5D1.3(b),” and “a condition may be imposed if it is reasonably related to any one or more of the specified factors.” United States v. Chaklader, 232 F.3d 343, 348 (2d Cir.2000) (internal quotation marks omitted); United States v. Amer, 110 F.3d 873, 883 (2d Cir.1997). a) Advance Notification of Any Computers Used Balon’s first challenge to the special conditions deals with the notification provision requiring him to “provide the U.S. Probation Office advance notification of any eom-puter(s), automated service(s), or connected device(s) that he will use during the term of supervision.” Balón argues that"
},
{
"docid": "7528886",
"title": "",
"text": "a condition of supervised release must relate to both the nature of the offense and the circumstances and history of the defendant. Section 3553(a)(1), indeed, uses the word “and” in listing the factors that must be considered by a District Court in imposing sentence. While this Court has not spoken on the issue, other circuits have determined that despite the presence of the word “and,” it is not necessary for all of the factors identified in § 3553(a) to be present before a special condition of supervised release may be imposed. See, e.g., United States v. Kent, 209 F.3d 1073, 1076 n. 3 (8th Cir.2000) (“[t]he special condition imposed need not be related to each and every one of the factors”); United States v. Abrar, 58 F.3d 43, 46 (2d Cir.1995) (“a condition may be imposed if it is reasonably related to any one or more of the specified factors”); United States v. Johnson, 998 F.2d 696, 698 (9th Cir.1993) (the language of § 3553(a) offers “a list of factors to guide the district court’s discretion rather than a checklist of requisites, each of which must be found before any condition of supervised release may be prescribed”). No circuit has held otherwise. There was ample evidence that if Sicher were to return to the location and associates that shaped her youth, she would be extremely likely to return to a life of crime. Thus, the special condition disputed here is related to “the history and characteristics of the defendant,” and also serves to promote rehabilitation consistent with § 3553(a)(2)(D). The Eleventh Circuit has upheld a similar condition that had the same effect. See United States v. Cothran, 855 F.2d 749 (11th Cir.1988). In Cothran, the defendant’s probation was subject to the condition that he remain outside Fulton County, Georgia, unless given permission to enter the county by his probation officer. Id. at 750. Atlanta is located in Fulton County, and the defendant was a popular and charismatic drug dealer in southeast Atlanta. Id. The Cothran court found that the condition was “reasonably related to the protection of the public” and"
},
{
"docid": "18138765",
"title": "",
"text": "Sex Offender Treatment Program Prochner now argues that the district court erred in imposing the special condition that he participate, if so directed by the Probation Office and the Court, in a sex offender specific treatment program, because his conviction did not involve a sex-related offense and he has never been accused of sexual assault. A sentencing judge has the authority to impose any condition of supervised release that is “reasonably related to (1) the defendant’s offense, history, and characteristics; (2) the need to deter the defendant from further criminal conduct; (3) the need to protect the public from further crimes by the defendant; and (4) the effective educational, vocational, medical, or other correctional treatment of the defendant.” York, 357 F.3d at 20; see 18 U.S.C. § 3583(d)(1) (incorporating by reference 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D)); U.S.S.G. § 5D1.3(b)(1). Although these factors are connected by the “and” conjunction, see 18 U.S.C. § 3583(d)(1); U.S.S.G. § 5D1.3(b)(l), “the critical test is whether the challenged condition is sufficiently related to one or more of the permissible goals of supervised release.” York, 357 F.3d at 20 (quoting United States v. Brown, 235 F.3d 2, 6 (1st Cir.2000)) (emphasis in York); see also United States v. Barajas, 331 F.3d 1141, 1146 (10th Cir.2003) (noting that every circuit to have decided the issue has adopted this interpretation notwithstanding the conjunction “and”). Thus, the fact that the special condition of sex offender treatment is not related to the crime of conviction does not, by itself, render the condition invalid. See York, 357 F.3d at 20. Nothing contained in the statute underlying U.S.S.G. § 5D1.3 limits the condition of sex offender treatment just to individuals convicted of sex offenses. Id.; see 18 U.S.C. § 3583. There are, to be sure, limitations on the district court’s power to impose special conditions of supervised release. The condition can “involve[] no greater deprivation of liberty than is reasonably necessary” to achieve the purposes of supervised release, and it must be “consistent with any pertinent policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(2), (3); U.S.S.G."
},
{
"docid": "7593837",
"title": "",
"text": "was error to enhance his sentence under § 924(e) based on this discharged conviction. IV. Finally, Gallaher contends that the district court abused its discretion in imposing condition 17 as condition of his supervised release. Condition 17 provides that, “the defendant shall not possess any firearms or other dangerous weapons, including but not limited to any bows and arrows or crossbows.” Gallaher asserts that this condition is not reasonably related to the nature and circumstances of the offense for which he was convicted. He notes that his conviction for being a felon in possession of ammunition did not involve the use of a bow, arrow, or a crossbow. Gallaher also contends that condition 17 is unrelated to his personal history or characteristics. He contends that there is no evidence on the record that he has ever used a bow and arrow to harm another human being. He argues that condition 17 “involves greater deprivation of liberty than is reasonably necessary for the purposes set forth in [the] sentencing guideline factors and thus is prohibited by U.S.S.G. § 5D1.3(b)(2).” We review a district court’s decision to impose a special condition of supervised release for an abuse of discretion. United States v. Pinjuv, 218 F.3d 1125, 1129 (9th Cir.), cert. denied, 531 U.S. 1025, 121 S.Ct. 597, 148 L.Ed.2d 511 (2000). A district court has discretion to order special conditions of supervised release pursuant to 18 U.S.C. § 3583(d), if the conditions are reasonably related to the factors set forth in 18 U.S.C. § 3553(a). United States v. Fellows, 157 F.3d 1197, 1203 (9th Cir.1998). The factors listed in § 3353(a), however, merely “guide the district court’s discretion” and do not act as “a checklist of requisites, each of which must be found before any condition of supervised release may be prescribed.” United States v. Johnson, 998 F.2d 696, 698 (9th Cir.1993). Gallaher was convicted of committing a violent assault, which included ripping the victim’s ear from his head and breaking his nose. The presentence report disclosed that Gallaher had previously been convicted of second-degree assault while armed with a deadly weapon,"
},
{
"docid": "7528885",
"title": "",
"text": "3563(b)(1) through (b)(10) and b(12) through b(20), and any other condition it considers to be appropriate. 18 U.S.C. § 3583(d). The relevant sections of § 3553(a) provide that when a district court imposes a sentence, it must consider: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (B) to 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 corrective treatment in the most effective manner[.] Sicher argues that the condition preventing her from entering Lehigh and Northampton counties is invalid for three reasons. First, she argues, it is not reasonably related to the nature and circumstances of her crime. Second, it involves a greater deprivation of liberty than is reasonably necessary. Third, it is inconsistent with the pertinent policy statements of the Sentencing Commission. With the reference to her first argument, Sicher seems to be suggesting that a condition of supervised release must relate to both the nature of the offense and the circumstances and history of the defendant. Section 3553(a)(1), indeed, uses the word “and” in listing the factors that must be considered by a District Court in imposing sentence. While this Court has not spoken on the issue, other circuits have determined that despite the presence of the word “and,” it is not necessary for all of the factors identified in § 3553(a) to be present before a special condition of supervised release may be imposed. See, e.g., United States v. Kent, 209 F.3d 1073, 1076 n. 3 (8th Cir.2000) (“[t]he special condition imposed need not be related to each and every one of the factors”); United States v. Abrar, 58 F.3d 43, 46 (2d Cir.1995) (“a condition may be imposed if it is reasonably related to any one or more of the specified factors”); United States v. Johnson, 998 F.2d 696, 698 (9th Cir.1993) (the language of § 3553(a) offers “a list of factors to guide the district court’s"
},
{
"docid": "9001105",
"title": "",
"text": "may be imposed if it is reasonably related to any one or more of the specified factors. See United States v. Johnson, 998 F.2d 696, 697-99 (9th Cir.1993). The statutes cited in § 5D1.3(b), 18 U.S.C. §§ 3553(a)(2) and 3583(d), generally treat the factors outlined in § 5D1.3(b) as matters to be considered in imposing a condition of supervised release. In any event, we fail to perceive how the debt repayment condition imposed in this case reasonably relates to any of these factors. Sentencing courts have broad discretion to tailor conditions of supervised release to the goals and purposes outlined in § 5D1.3(b). See, e.g., United States v. Thurlow, 44 F.3d 46, 47 (1st Cir.) (per curiam) (condition that defendant convicted of theft-related offenses abstain from consuming alcohol permissible because of defendant’s history of substance abuse and use of crime proceeds to purchase alcohol on several occasions), cert. denied, — U.S. -, 115 S.Ct. 1987, 131 L.Ed.2d 874 (1995); United States v. Chinske, 978 F.2d 557, 560 (9th Cir.1992) (conditions that defendant not own firearms, attend a substance abuse treatment program, and submit to searches of his person, vehicle, and residence related to offense of maintaining a residence for the cultivation of marijuana); United States v. Sharp, 931 F.2d 1310 (8th Cir.1991) (condition subjecting defendant to warrantless searches to determine if he possessed alcohol or drugs permitted when defendant convicted of narcotics violation); cf. United States v. Prendergast, 979 F.2d 1289, 1292-93 (8th Cir.1992) (condition requiring defendant convicted of wire fraud to abstain from consuming alcohol and drugs, to undergo drug tests, and to be subject to warrantless searches of his premises, vehicle, or person impermissible in absence of “evidence indicating that [defendant] suffers from alcoholism or that the use of alcohol in any way contributed to the commission of the offense for which he was sentenced”). We do not perceive, however, an adequate connection between the challenged release condition in this case and any of the relevant factors. The government contends that because Abrar received at least $20,000 for the provision of illegal immigration documents, “the court could obtain"
},
{
"docid": "6021845",
"title": "",
"text": "these cases, the Eighth Circuit held that a special condition allowing warrantless searches of individuals on supervised release for the presence of alcohol or drugs could not stand because the condition was not related to the goals of rehabilitation and protection; the evidence did not show that the defendants had significant problems with drugs or alcohol. See Bass, 121 F.3d at 1224; Prendergast, 979 F.2d at 1293. 1. We begin our assessment of Mr. Montei-ro’s contention by reviewing the statutory scheme that governs supervised release. Title 18, .section 3583 permits a sentencing court to include a term of supervised release. See 18 U.S.C. § 8583(a). The United States Sentencing Guidelines require that a term of supervised release be imposed whenever a sentence of more that a year’s imprisonment is imposed or when supervised release is required by statute. The Guidelines also make clear that a term of supervised release may be imposed in any other case in which a term of imprisonment is imposed. See U.S.S.G. § 5D1.1. In imposing a term of supervised release, the district court may include, in addition to the mandatory conditions set forth in 18 U.S.C. § 3583(d), certain additional conditions of supervised release set forth in § 3563(b) and any other condition that the district court deems appropriate, even if that condition is not set forth explicitly in the statute. See 18 U.S.C. §§ 3563(b), 3583(d). In imposing such conditions, the district court must take care to ensure that the particular condition imposed (1) is reasonably related to specified sentencing factors, namely the nature and circumstances of the offense and the history and characteristics of the defendant; (2) is reasonably related to the need to afford adequate deterrence, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) involves no greater deprivation of liberty than is reasonably necessary to achieve these goals; and (4) is consistent with any pertinent policy statements issued by the Sentencing Commission. United States v. Schave, 186"
}
] |
780731 | redemption would do violence to the constitutional prohibition against the impairment of the obligation of a contract. State ex rel. Federal Land Bank v. Stephens, 182 Wash. 444, 446, 47 P.2d 837; Wood v. Lovett, 313 U.S. 362, 369, 61 S.Ct. 983, 85 L.Ed. 1404. There is no such limitation upon the power of Congress. Legal Tender cases, 79 U.S. 457, 549, 20 L.Ed. 287; Wright v. Vinton Branch, 300 U.S. 440, 470, 57 S.Ct. 556, 81 L.Ed. 736, 112 A.L.R. 1455. The Soldiers’ and Sailors’ Relief Act, upon which Holden bases his claim, is bottomed upon the war power which extends to every matter and activity so related to war as substantially to affect its conduct and progress. Kiyshi REDACTED 93, 63 U.S. 1375, 87 L.Ed. 1774. Under the Constitution, the Congress, in the exercise of its war power, is given wide scope with the exercise of'judgment and discretion in determining the means to be used in furthering the war effort. Martin v. Mott, 25 U.S. 19, 29, 6 L.Ed. 537; Northern Pacific Railway Company v. North Dakota, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897; Dakota Central Telephone Company v. State of South Dakota, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A. L.R. 1623; Ruppert v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260; Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165. That power is sufficiently extensive to | [
{
"docid": "22604937",
"title": "",
"text": "order in question, or have authorized others to make it. For the President’s action has the support of the Act of Congress, and we are immediately concerned with the question whether it.is within- the constitutional power of the national government, through the joint action of Congress and the Executive, to impose this restriction as an emergency war measure. .The ex*' ercise -of that power here involves no question of martial law or trial by military tribunal. Cf. Ex parte Milligan, 4 Wall. 2:; Ex parte Quirin,-. supra. Appellant-. has. been tried and convicted in the civil courts and has been subjected to penalties prescribed by Congress for the acts committed. The war power of the national government is “the power to wage war successfully.” See Charles Evans Hughes, War Powers Under the Constitution, 42 A. B. A. Rep. 232, 238. It extends to every matter and adtivity so related to war as substantially to affect its conduct and progress.' The power is not restricted to the winning of victories'in the field and the repulse of enemy fofcés. It embraces every phase of the national defense, including the protection of war materials and the members of thé armed forces from injury and from the dangers which attend the rise, prosecution and progress of war. Prize Cases, supra; Miller v. United States, 11 Wall. 268, 303-14; Stewart v. Kahn, 11 Wall. 493, 506-07; Selective Draft Law Cases, 245 U. S. 366; McKinley v. United States, 249 U. S. 397; United States v. Macintosh, 283 U. S. 605, 622-23. Since the Constitution commits to the Executive and to Congress the exercise of' the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it. Ex parte Quirin, supra, 28-29; cf. Prize Cases, supra, 670; Martin v. Mott, 12 Wheat. 19, 29. Where, as they did here, the conditions” call for the exercise of judgment and discretion and for"
}
] | [
{
"docid": "4167108",
"title": "",
"text": "of $132,300 had been submitted by Simmonds Aerocessories, Inc., financed by the government through the Defense Plant Corporation. The statute vested in the executive, in the exercise of his discretion, the power to make the determinations required. That determination has been made here and is not to be reviewed by us. The scope for the exercise of judgment and discretion by the President and Congress to meet the exigencies of war is a wide one and it is not for the courts to sit in review of the action taken in organizing war effort at home or the operation of armed forces in direct contact with the enemy. Hirabayashi v. United States of America, 1943, 63 S.Ct. 1375, 87 L.Ed.-. This principle was applied where a requisition made during the last war by the executive arm of the government pursuant to Congressional authorization was attacked as in excess or abuse of discretion. Dakota Central Telephone Company v. State of South Dakota, 1919, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623. Similar decisions already have been made in this war under the statute in question. In re Inland Waterways, Inc., D.C.Minn. 1943, 49 F.Supp. 675; Alpirn v. Huffman, D.C. Neb. 1943, 49 F.Supp. 337. But even if the action taken were reviewable, appellant has not shown that there was an abuse of discretion. The apparent purpose of the statute is to assure that urgently needed property shall be obtained by the government quickly and upon reasonable terms. Purchase by competitive bidding, which appellant suggests could have been made, is obviously hostile to the ends sought. There is not only a lack of certainty that the property will be purchased upon reasonable terms but absence of any assurance that it will be obtained at all. Payment of Compensation. There remains one point to which even appellant accords but a casual treatment. It is that under the statute and Fifth Amendment of the Constitution compensation for the property taken had to be determined and paid before the requisition was made. However, the Fifth Amendment does not require the ascertainment"
},
{
"docid": "16542374",
"title": "",
"text": "88 L.Ed. 892. Commodity prices can be controlled. Yakus v.. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834. • Materials may be allocated among producers and distributors ; they may be taken away from a wasteful factory and routed to an efficient one; they may be withheld from retailers violating the rationing regulations. L. P. Steuart & Bro., Inc., v. Bowles, 322 U.S. 398, 64 S.Ct. 1097; 88 L.Ed. 1350. Prohibition may be ordered. Ruppert, Inc., v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194. A purchaser’s rights under a contract may be frustrated by a taking from his contractor. Omnia Commercial Co. v. United States, 261 U.S. 502, 43 S.Ct. 437, 67 L.Ed. 773. All these things the Government may do without making compensation. And yet the Constitution is not suspended in time of war; where there is a taking, there must still be compensation. Hamilton v. Kentucky Distilleries & Warehouse Co., supra; United States v. L. Cohen Grocery Co., 255 U.S. 81, 88, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045. Where compensation was. not required, it was because it was held that there had been no taking; the damage done to property was doné incidentally in the proper exercise of a legitimate governmental or sovereign power. The point was clearly made' in the Legal Tender Cases, 12 Wall. 457, 551, 20 L.Ed. 287: “That próvision [Fifth Amendment] has-always been understood’as-referring only to-a direct appropriation, -and not to consequential injuries resulting from the-exercise of lawful power. .It has never been supposed to have any bearing upon, or to. inhibit laws that indirectly, work harm and loss to individuals. A new tariff, an em- • bargo, a draft, or a war may inevitably bring upon individuals great losses;, may,, indeed, render valuable property almost val-, ueless.. They may destroy the worth of contracts. But whoever supposed that, -because of this, a tariff could not be changed,, or a non-intercourse act, or an embargo be enacted, or a"
},
{
"docid": "14051411",
"title": "",
"text": "and it can also, with constitutional limitations, regulate and draft the resources of the Nation. The Supreme Court has already spoken on this question. In Northern Pacific Railroad Company v. North Dakota, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897, it has upheld the power to take over and operate the railroads; in Dakota Central Telephone Company v. South Dakota, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623, to take over and operate telegraph and telephone systems; in Moore & Tierney, Inc., v. Roxford Knitting Company, 2 Cir., 265 F. 177, 11 A.L.R. 1415, certiorari denied 253 U.S. 498, 40 S.Ct. 588, 64 L.Ed. 1032, to place compulsory orders for materials required for national defense; in Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856, to draft manpower for service in the armed forces; in Jacob Ruppert, Inc., v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260, to prohibit the manufacture or sale of alcoholic beverages; in Highland v. Russell Car & Snow Plow Co., 279 U.S. 253, 49 S.Ct. 314, 73 L.Ed. 688, to regulate the prices of certain commodities; in Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165, to control rents.” Nordbye, J., in United States v. C. Thomas Stores, Inc., D.C.Minn., February 26, 1943, 49 F. Supp. 111, 113. Additional instances of exercise of the war powers sustained by the courts include the present Emergency Price Control Act, 50 U.S.C.A.Appendix, § 901 et seq. See opinions of Judge Hincks in United States v. Friedman, D.C.Conn.March 25, 1943, 50 F.Supp. 584, and United States v. Sosnowitz & Lotstein, Inc., et al., D.C.Conn. March 25, 1943, 50 F.Supp. 586; and see United States v. Wright, D.C.Del.1943, 48 F.Supp. 687; Henderson v. Byran, D.C. Cal.1942, 46 F.Supp. 682; United States v. C. Thomas Stores, Inc., et al., supra, and the anti-prostitution statute of World War I, Act May 18, 1917, § 13, 40 Stat. 83, 50 U.S.C.A. § 226 note, McKinley v. United States,"
},
{
"docid": "4167107",
"title": "",
"text": "being the trustee of the chattel for the benefit of creditors of the bankrupt, he is trustee of the chose in action for its loss. Here, the statute authorizing the requisition provides an exclusive remedy which the bankrupt, if solvent, would have had to pursue, and which the trustee, in his stead, must follow. Is the Determination of Necessity Reviewable ? The statute authorizes the President to make requisitions whenever he determines that'the need is immediate and that “all other means of obtaining the use of such property * * * upon fair and reasonáble terms have been exhausted.” Such determination must also be made by the authorities to whom the President has delegated his power. The appellant challenges the truth of the statements to this effect in the petition to the court and in the requisition proposal. It is claimed that the property could have been acquired by the government by submitting bids at the sale of the estate’s assets which was to be held by the receiver and that, in fact, a bid of $132,300 had been submitted by Simmonds Aerocessories, Inc., financed by the government through the Defense Plant Corporation. The statute vested in the executive, in the exercise of his discretion, the power to make the determinations required. That determination has been made here and is not to be reviewed by us. The scope for the exercise of judgment and discretion by the President and Congress to meet the exigencies of war is a wide one and it is not for the courts to sit in review of the action taken in organizing war effort at home or the operation of armed forces in direct contact with the enemy. Hirabayashi v. United States of America, 1943, 63 S.Ct. 1375, 87 L.Ed.-. This principle was applied where a requisition made during the last war by the executive arm of the government pursuant to Congressional authorization was attacked as in excess or abuse of discretion. Dakota Central Telephone Company v. State of South Dakota, 1919, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623. Similar"
},
{
"docid": "15304316",
"title": "",
"text": "commission need not be considered; for it is clear that it is only on the allegations of want of statutory or constitutional authority that the suit against the commissioners as individuals could under any theory be sustained.” The question was squarely before the Supreme Court in Dakota Central Tel. Co. v. South Dakota, supra, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623, which involved the taking over of the telephone companies by the President under a statute enacted under the war power. It was argued that the action of the President was an abuse of the discretion vested in him as the war had virtually ended and the action taken was not for the purpose of prosecuting the war but for regulating telephone rates. See argument 250 U.S. at page 177. In disposing of this contention the Court, speaking through Chief Justice White, said (250 U.S. 163, at page 184, 39 S.Ct. 507, 509, 63 L.Ed. 910, 4 A.L.R. 1623): “The proposition that the President in exercising the power exceeded the authority given him is based upon two considerations : First, because there was nothing in the conditions at the time the power was exercised which justified the calling into play of the authority; indeed, the contention goes further and assails the motives which it is asserted induced the exercise of the power. But as the contention at best concerns not a want of power, but a mere excess or abuse of discretion in exerting a power given, it is clear that it involves considerations which are beyond the reach of judicial power. This must be since, as this court has often pointed out, the judicial may not invade the legislative or executive department so as to correct alleged mistakes or wrongs arising from asserted abuse of discretion.” (Italics ours.) The fact that the competition which will result from the project may have some effect upon plaintiff’s rates cannot affect the validity of the action of the Administrator any more than his motives. It is true, of course, that neither Congress nor the Administrator may do"
},
{
"docid": "80688",
"title": "",
"text": "SWEENEY, District Judge. To this indictment the defendants have filed a demurrer, motions to quash, and pleas in abatement. In these pleadings they attack the constitutionality of the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix § 901 et seq., as being both an improper use of the war power by Congress, and an improper delegation by Congress of its legislative function to an administrative agency. They also insist that the defendants’ rights under the Fourth and Fifth Amendments to the Constitution have been invaded, and further allege that the Government is without authority to prosecute this indictment, because Maximum Price Regulation No. 169, Sections 1364.51 and 1364.52, were revoked prior to the return of this indictment. It is this last contention that gives the court the most concern. The constitutionality of this Act, as it relates to the ceiling on rents, has been sustained by a three-judge court in Henderson v. Kimmel, D.C., 47 F.Supp. 635, as a legitimate exercise of the war power of Congress which is broad and “well-nigh limitless.” United States v. Macintosh, 283 U.S. 605, 624, 51 S.Ct. 570, 575, 75 L.Ed. 1302. All the reasoning of that decision and the many others sustaining the war power of Congress apply with equal force to the price control features of the Act in question. See Helena Rubinstein, Inc., v. Charline’s Cut Rate, Inc., 132 N.J.Eq. 254, 28 A.2d 113. In the exercise of its very broad power to adopt measures which it deems essential to the war success Congress has intervened in many diverse fields. The Supreme Court has upheld such interferences with property as the taking over and operation of railroads (Northern Pacific Railway Co. v. North Dakota ex rel. Langer, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897), and the taking over and operation of telephone and telegraph lines (Dakota Central Telephone Co. v. South Dakota ex rel. Payne, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623), and has approved the invasion of the freedom of the individual by compulsory military service both at home and abroad. (Arver"
},
{
"docid": "14051410",
"title": "",
"text": "morale of the people and the spirit of the army may not be broken by seditious utterances; freedom of the press curtailed to preserve our military plans and movements from the knowledge of the enemy; deserters and spies put to death without indictment or trial by jury; ships and supplies requisitioned; property of alien enemies, theretofore under the protection of the Constitution, seized without process and converted to the public use without compensation and without due process of law in the ordinary, sense of that term; prices.of food and other necessities of life fixed or regulated; railways taken over and operated by the government; and other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.” United States v. Macintosh, 1931, 283 U.S. 605, 622, 51 S.Ct. 570, 574, 75 L.Ed. 1302. Judge Nordbye in his opinion in a recent case has pointed out some instances of exercise of the war power of the Congress upheld by the courts in the past. “Congress drafts soldiers to fight the Nation’s battles, and it can also, with constitutional limitations, regulate and draft the resources of the Nation. The Supreme Court has already spoken on this question. In Northern Pacific Railroad Company v. North Dakota, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897, it has upheld the power to take over and operate the railroads; in Dakota Central Telephone Company v. South Dakota, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623, to take over and operate telegraph and telephone systems; in Moore & Tierney, Inc., v. Roxford Knitting Company, 2 Cir., 265 F. 177, 11 A.L.R. 1415, certiorari denied 253 U.S. 498, 40 S.Ct. 588, 64 L.Ed. 1032, to place compulsory orders for materials required for national defense; in Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856, to draft manpower for service in the armed forces; in Jacob Ruppert, Inc., v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260, to prohibit the manufacture or sale of alcoholic beverages;"
},
{
"docid": "11206862",
"title": "",
"text": "federal court of equity on the ground that that statute, or the one creating the commission, is void under the State Constitution. Cf. Shepard v. Barron, 194 U.S. 553, 24 S.Ct. 737, 48 L.Ed. 1115. The sound discretion which controls the exercise of the extraordinary powers of a federal court of equity should not permit them to be exerted to relieve suitors on such a ground from the very action of state. authorities-which they have invoked.” None of the cases presents the situation where one party is claiming to have performed a contract and -the question is whether he is affected by a claimed unconstitutional provision which requires his further performance. We hold that appellants are not estopped to raise the question of constitutionality of the Renegotiation Act. Cf. Coffman v. Breeze, 323 U.S. 316, 324, 65 S.Ct. 298, 302. The sole question is, as they contend, are the provisions of the Act constitutional ? If they are, appellants agree, the Secretary’s withholding order is valid. The Renegotiation Act became law on April 28, 1942. It was made applicable to existing contracts and subcontracts upon which it is an exercise of that same power to wage war which permits the government to control the price of every commodity bought and sold within the national boundaries (Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834); to fix the amount or rent to be charged for every room, home, or building and this even though to an individual landlord there may be less than a fair return (Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892); to construct extensive systems of public works (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688); to operate railroads (Northern Pacific R. Co. v. North Dakota, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897) ; to prohibit the sale of liquor (Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194) ; to restrict freedom of speech in a manner that would be unwarranted in time of peace (Schenck"
},
{
"docid": "80689",
"title": "",
"text": "States v. Macintosh, 283 U.S. 605, 624, 51 S.Ct. 570, 575, 75 L.Ed. 1302. All the reasoning of that decision and the many others sustaining the war power of Congress apply with equal force to the price control features of the Act in question. See Helena Rubinstein, Inc., v. Charline’s Cut Rate, Inc., 132 N.J.Eq. 254, 28 A.2d 113. In the exercise of its very broad power to adopt measures which it deems essential to the war success Congress has intervened in many diverse fields. The Supreme Court has upheld such interferences with property as the taking over and operation of railroads (Northern Pacific Railway Co. v. North Dakota ex rel. Langer, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897), and the taking over and operation of telephone and telegraph lines (Dakota Central Telephone Co. v. South Dakota ex rel. Payne, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623), and has approved the invasion of the freedom of the individual by compulsory military service both at home and abroad. (Arver et al., v. United States, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.l918B, 856). The power to enact the Emergency Price Control Act of 1942 cannot be seriously questioned in the light of these decisions. Indeed, it would be a strange situation to grant that Congress has the power to take men from their homes and to send them to war, and to deny that Congress has the right to prevent profiteering by those supplying food to their dependents. Nor is the exercise of this broad power weakened constitutionally by the delegation of its power under proper standards to those charged with the administration of the Act. Congress has set forth the objectives in Section 1(a), 50 U.S.C.A. Appendix § 901(a). To attain these objectives maximum price regulations were authorized to be promulgated, the procedure for which is set out in Section 2(a), 50 U.S.C.A. Appendix § 902(a). There is no loose and general delegation of authority here as in Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241,"
},
{
"docid": "16542373",
"title": "",
"text": "Price Control in War and Emergency, 90 U. of Pa.L.Rev. 675, and Marcus, The taking and Destruction of Property Under a Defense and War Program, 27 Corn.L.Q. 317, 515. The war power “is a power to wage'war successfully, and thus it permits the harnessing of the entire' energies of the people in a supreme- co-operative effort to .preserve the nation;” Home Building & Loan. Association v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413, 88 A.L.R. 1481. See also United States v. Macintosh, 283 U.S. 605, 622, 51 S.Ct. 570, 75 L.Ed. 1302. In a time when even one’s freedom of person may be greatly restricted, Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, there can be little doubt of -the Government’s power- to restrict one’s freedom to mine gold. In time of war or national emergency rent control can be imposed. Woods v. Cloyd W. Miller Co., 333 U.S. 138, 68 S.Ct. 421, 92 L.Ed. 596; Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892. Commodity prices can be controlled. Yakus v.. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834. • Materials may be allocated among producers and distributors ; they may be taken away from a wasteful factory and routed to an efficient one; they may be withheld from retailers violating the rationing regulations. L. P. Steuart & Bro., Inc., v. Bowles, 322 U.S. 398, 64 S.Ct. 1097; 88 L.Ed. 1350. Prohibition may be ordered. Ruppert, Inc., v. Caffey, 251 U.S. 264, 40 S.Ct. 141, 64 L.Ed. 260; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194. A purchaser’s rights under a contract may be frustrated by a taking from his contractor. Omnia Commercial Co. v. United States, 261 U.S. 502, 43 S.Ct. 437, 67 L.Ed. 773. All these things the Government may do without making compensation. And yet the Constitution is not suspended in time of war; where there is a taking, there must still be compensation. Hamilton v. Kentucky Distilleries & Warehouse Co., supra;"
},
{
"docid": "11206863",
"title": "",
"text": "It was made applicable to existing contracts and subcontracts upon which it is an exercise of that same power to wage war which permits the government to control the price of every commodity bought and sold within the national boundaries (Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834); to fix the amount or rent to be charged for every room, home, or building and this even though to an individual landlord there may be less than a fair return (Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892); to construct extensive systems of public works (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688); to operate railroads (Northern Pacific R. Co. v. North Dakota, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897) ; to prohibit the sale of liquor (Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194) ; to restrict freedom of speech in a manner that would be unwarranted in time of peace (Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470); to ration and allocate the distribution of every commodity important to the war effort (Steuart & Bro. v. Bowles, 322 U.S. 398, 64 S.Ct. 1097, 88 L.Ed. 1350) ; to restrict the personal freedom of American citizens by curfew orders and the designation of areas of exclusion (Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774); and, finally, to demand of every citizen that he serve in the armed forces of the nation (Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305; Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas. 856). “The war power of the national government is ‘the power to wage war successfully.’ See Charles Evans Hughes, War Powers Under the Constitution, 42 A.B.A. Rep. 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of"
},
{
"docid": "11005969",
"title": "",
"text": "were to deal with all of them it could not exercise the power to allocate at all. While the rule against the delegation of legislative power is fixed and unalterable, not depending upon the existence of emergency, the Congress, which is authorized to empower the executive to act in accordance with due legislative standards, may exercise a discretion in the fixing of those standards. In the emergency of war, the standards must be flexible enough to permit speed and efficiency of action for the national defense. Cf. Dakota Central Telephone Co. v. State of South Dakota, 250 U.S. 163, 183, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623; United States v. Chemical Foundation, Inc., 272 U.S. 1, 12, 47 S.Ct. 1, 71 L.Ed. 131. It was pointed out in the latter case that it was not necessary for the Congress to deal with each case and that the Act went as far as was reasonably practical under the existing circumstances. That the desired result of speed and efficiency of action has been attained by the rationing of materials and facilities under the Second War Powers Act of 1942 is demonstrated by the triumphant record of the American war industry. Since the President cannot order the allocations except as he deems it necessary or appropriate in the public interest and for the common defense, which are drastic limitations, we think that no illegal delegation of legislative power exists, and the Act is valid. This conclusion is squarely supported by Sunshine Coal Co. v. Adkins, 310 U.S. 381, 397, 60 S.Ct. 907, 84 L.Ed. 1263. Nor does the wide discretion confided in the President in the Second War Powers Act of 1942 invalidate the statute. While he is authorized to make the allocations in such manner and to such extent as he shall “deem necessary or appropriate in the public interest and to promote the national defense,” similar broad delegations of power have long been held to be valid. In Field v. Clark, supra, the court discussed a number of federal statutes, including the act of June 4, 1794, 1 Stat."
},
{
"docid": "176776",
"title": "",
"text": "Langer, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897; Dakota Central Tel. Co. v. State of South Dakota ex rel. Payne, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194. The existence of an emergency warranting the legislation presently involved can not be denied. It has already been pointed out that the comprehensive National Defense Act in force during the last previous World War was enacted more than ten months prior to the actual onset of formal warfare. In that respect there is a similarity between the two measures. They were deliberately and prudently anticipatory of probably impending hostilities which actually eventuated. Confirmatory reenacting amendment of the present act has occurred since the declaration of the presently persisting state of war. At this point, for it touches upon the factor of military emergency, mention may be made, without amplification, of the impact upon this issue, of the modern technological revolution in warfare and communication. Defensive measures which, a century ago, might have awaited deliberation and the orderly course of judicial process, must now be taken resolutely and immediately. Science has changed not alone the methods of formal warfare, but also and especially the relationship to it of the civilian population. The right of government to exercise the power which the plaintiffs assail being allowed, it follows that, if the discretion preliminary to its exercise is reposed in the executive, that discretion is not a proper subject for judicial review. And this is particularly true when the relief sought is through the extraordinary and thwarting remedy of injunction. This thought was expressed very early in our history. In 1827, in Martin v. Mott, 25 U.S. 19, 29, 12 Wheat. 19, 6 L.Ed. 537, a question arose which rested upon the power of the President to call out the militia, in the decision of which Mr. Justice Story said: “The power thus confided by congress to the president, is, doubtless, of a very high and delicate nature. A free people are naturally"
},
{
"docid": "176775",
"title": "",
"text": "to fulfill private contracts whose performance presumed their continued possession and employment of such property and facilities. United States v. McFarland, 4 Cir., 15 F.2d 823, 826, which declares the general rule that: “The President, as Commander-in-Chief of the Army and Navy, doubtless had the constitutional power in war time, in cases of immediate and pressing exigency, to appropriate private property to public uses; the government being bound to make just compensation therefor.” See also Manufacturers’ Land & Improvement Co. v. U. S. Shipping Board Emergency Fleet Corporation, 264 U.S. 250, 44 S.Ct. 314, 68 L.Ed. 664; Roxford Knitting Co. v. Moore & Tierney, 2 Cir., 265 F. 177, 11 A.L.R. 1415; United States v. Gordin, D.C., 287 F. 565; United States v. Stein, D.C., 48 F.2d 626; Mawhinney v. Millbrook Woolen Mills, 105 Misc. 99, 172 N.Y.S. 461; Id., 231 N.Y. 290, 132 N.E. 93, 15 A.L.R. 1506; Richmond Fairfield Ry. Co. v. Llewellyn, 156 Va. 258, 157 S.E. 809, 162 S.E. 601; Northern Pac. Ry. Co. v. State of North Dakota, ex rel. Langer, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897; Dakota Central Tel. Co. v. State of South Dakota ex rel. Payne, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194. The existence of an emergency warranting the legislation presently involved can not be denied. It has already been pointed out that the comprehensive National Defense Act in force during the last previous World War was enacted more than ten months prior to the actual onset of formal warfare. In that respect there is a similarity between the two measures. They were deliberately and prudently anticipatory of probably impending hostilities which actually eventuated. Confirmatory reenacting amendment of the present act has occurred since the declaration of the presently persisting state of war. At this point, for it touches upon the factor of military emergency, mention may be made, without amplification, of the impact upon this issue, of the modern technological revolution in warfare and communication. Defensive"
},
{
"docid": "11005968",
"title": "",
"text": "(2) to promote the national defense. The President, for instance, is not authorized to exercise this power merely because he deems it necessary or appropriate in the public interest. It must also in his opinion be necessary or appropriate in promotion of the national defense. We do not consider the lack of further detailed standards as invalidating this legislation. The Congress, acting within its legislative powers, was entitled to consider the character of the emergency confronting the nation and the “inherent necessities of the governmental co-ordination.” J. W. Hampton, Jr., & Co. v. United States, supra. Munitions of war essential to our defense called for all the basic materials, metals, wood stuffs, cellulose, textiles, and the broadening categories of complex chemical products. They could not be manufactured if the raw materials were not conserved, and the very existence of the nation depended upon such conservation. The observation of Chief Justice Taft in J. W. Hampton, Jr., & Co. v. United States, became critically apposite here. The problems of allocation were myriad, and if the Congress were to deal with all of them it could not exercise the power to allocate at all. While the rule against the delegation of legislative power is fixed and unalterable, not depending upon the existence of emergency, the Congress, which is authorized to empower the executive to act in accordance with due legislative standards, may exercise a discretion in the fixing of those standards. In the emergency of war, the standards must be flexible enough to permit speed and efficiency of action for the national defense. Cf. Dakota Central Telephone Co. v. State of South Dakota, 250 U.S. 163, 183, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623; United States v. Chemical Foundation, Inc., 272 U.S. 1, 12, 47 S.Ct. 1, 71 L.Ed. 131. It was pointed out in the latter case that it was not necessary for the Congress to deal with each case and that the Act went as far as was reasonably practical under the existing circumstances. That the desired result of speed and efficiency of action has been attained by"
},
{
"docid": "15304315",
"title": "",
"text": "latter case would be for the courts to control the executive in the exercise of executive discretion, a thing which under our tripártate form of government they have no power to do. Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 57 S.Ct. 407, 410, 81 L.Ed. 562; Dakota Central Telephone Company v. South Dakota, 250 U.S. 163, 184, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623; Louisiana v. McAdoo, 234 U.S. 627, 633, 34 S.Ct. 938, 58 L.Ed. 1506; Philadelphia Co. v. Stimson, 223 U.S. 605, 620, 32 S.Ct. 340, 56 L.Ed. 570; Ferris v. Wilbur (CC.A.4th) 27 F.(2d) 262, 264; Appalachian Electric Power Company v. Smith (C.C.A.4th) 67 F.(2d) 451, 454. In the case last cited, there were allegations in the bill as to abuse of authority by the members of the Federal Power Commission, as well as allegation with respect to action without authority.. In refusing to consider the allegations as to abuse of authority, we said: “The allegations and prayers of the bill which relate to abuse of authority by the commission need not be considered; for it is clear that it is only on the allegations of want of statutory or constitutional authority that the suit against the commissioners as individuals could under any theory be sustained.” The question was squarely before the Supreme Court in Dakota Central Tel. Co. v. South Dakota, supra, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623, which involved the taking over of the telephone companies by the President under a statute enacted under the war power. It was argued that the action of the President was an abuse of the discretion vested in him as the war had virtually ended and the action taken was not for the purpose of prosecuting the war but for regulating telephone rates. See argument 250 U.S. at page 177. In disposing of this contention the Court, speaking through Chief Justice White, said (250 U.S. 163, at page 184, 39 S.Ct. 507, 509, 63 L.Ed. 910, 4 A.L.R. 1623): “The proposition that the President in exercising the power exceeded the"
},
{
"docid": "15304314",
"title": "",
"text": "his program by lot or to close his eyes to the interests of the public or the social desirability of projects among which he must choose. Few projects would seem to have greater social desirability than those which will result in the utilization of undeveloped natural resources and will help supply the rapidly increasing demand for electric power ; and we cannot see that it is a valid objection to the selection of such projects that the competition which will be engendered by them may result in the’ lowering of electric power rates to the public. In the third place, even if the Administrator have the motive attributed to him by plaintiff, and even if this be an improper motive, the validity of his action is not affected thereby. Equity will restrain where there is lack of power on the part of a public officer, not where there is mere abuse of power in doing from a wrong motive or to accomplish an ulterior purpose that which the law authorizes. To grant injunction in the latter case would be for the courts to control the executive in the exercise of executive discretion, a thing which under our tripártate form of government they have no power to do. Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 57 S.Ct. 407, 410, 81 L.Ed. 562; Dakota Central Telephone Company v. South Dakota, 250 U.S. 163, 184, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623; Louisiana v. McAdoo, 234 U.S. 627, 633, 34 S.Ct. 938, 58 L.Ed. 1506; Philadelphia Co. v. Stimson, 223 U.S. 605, 620, 32 S.Ct. 340, 56 L.Ed. 570; Ferris v. Wilbur (CC.A.4th) 27 F.(2d) 262, 264; Appalachian Electric Power Company v. Smith (C.C.A.4th) 67 F.(2d) 451, 454. In the case last cited, there were allegations in the bill as to abuse of authority by the members of the Federal Power Commission, as well as allegation with respect to action without authority.. In refusing to consider the allegations as to abuse of authority, we said: “The allegations and prayers of the bill which relate to abuse of authority by the"
},
{
"docid": "11206864",
"title": "",
"text": "v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470); to ration and allocate the distribution of every commodity important to the war effort (Steuart & Bro. v. Bowles, 322 U.S. 398, 64 S.Ct. 1097, 88 L.Ed. 1350) ; to restrict the personal freedom of American citizens by curfew orders and the designation of areas of exclusion (Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774); and, finally, to demand of every citizen that he serve in the armed forces of the nation (Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305; Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas. 856). “The war power of the national government is ‘the power to wage war successfully.’ See Charles Evans Hughes, War Powers Under the Constitution, 42 A.B.A. Rep. 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war.” Hirabayashi v. United States, 1943, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774. During 1942, appellants manufactured and sold mechanical fittings and parts for airplanes, and the full capacity of appellants’ plant was directed to the production of materials which had a war end use. Appellants’ total sales for 1942 were approximately $405,000 and the profit on these sales, after payment of all expense except salaries to the partners, taxes and investments in the business, was $211,000, or a ratio of profit to sales of 52%. The Under Secretary reduced the profit to $100,000, making a ratio of profit to adjusted sales (total sales reduced by $110,000) of 33%. Certainly it was a matter of congressional concern in a total war, global in extent, with the"
},
{
"docid": "3083105",
"title": "",
"text": "by the Supreme Court as the “power to wage war successfully”, and one which “permits the harnessing of the entire energies of the people in a supreme co-operative effort to preserve the nation”. Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413, 88 A.L.R. 1481. “The Congress and the President exert the war power of the nation, and they have wide discretion as to the means to be employed successfully to carry on.” Highland v. Russell Car & Snowplow Co., 279 U.S. 253, 262, 49 S.Ct. 314, 316, 73 L.Ed. 688. The war powers of the government “include not only those matters specifically stated, but all others reasonably implied as necessary to the execution of the main matter of waging war to a successful conclusion. These powers are not limited to battle on land and sea, in the air and under the waters. They inherently carry with them subsidiary faculties to deal comprehensively with all exigencies created by war or arising from its inception, progress and termination.” Lajoie v. Milliken, 242 Mass. 508, 136 N.E. 419, 423. Legislation controlling rents and prices and protecting the country against the evils of inflation, so frequently attendant upon wars, is clearly within the ambit of the war powers conferred upon Congress. As was well said by Judge Phillips holding the act here involved to be constitutional: .“That rent control is necessary to the effective prosecution of the war effort is not open to doubt. It is necessary in order to prevent the disastrous effects of inflation, to protect the families of men in the armed service, to attract workers to vital defense areas, to bring about a fair distribution of essential labor among the several defense areas, and to insure defense workers of housing accommodations at rentals that are not. exorbitant. In short, it is necessary to maintain civilian morale and insure the production of necessary armaments.” Henderson v. Kimmel, D.C., 47 F.Supp. 635, 642. See, also, Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165, and Highland"
},
{
"docid": "23182776",
"title": "",
"text": "be upheld as a permanent change.” Block v. Hirsch, 1921, 256 U.S. 135, 157, 41 S.Ct. 458, 460, 65 L.Ed. 865, 16 A.L.R. 165. Furthermore, the Act does not require the landlord to continue his property in the market for housing accommodations. Section 4(d) of the Act provides: “Nothing in this Act shall be construed to require any person to sell any commodity or to offer any accommodations for rent.” In accordance with this statutory provision, the regulation now in question provides that a landlord may evict a tenant whose lease has expired if he “seeks in good faith not to offer the housing accommodations for rent.” The landlord is thus free to occupy the property himself, or devote it to some commercial enterprise, or utilize it in any other way. This serves to emphasize that there has been no “taking” of his property in the constitutional sense. The proper test of constitutionality, we think, is the more general one applicable where legislation is challenged under the due process clause as constituting an arbitrary and capricious exercise of a granted power. In Cafhoun v. Massie, 1920, 253 U.S. 170, 175, 40 S.Ct. 474, 476, 64 L.Ed. 843, it is stated: “An appropriate exercise by a state of its police power is consistent with the Fourteenth Amendment although it results in serious depreciation of property values; and the United ■ States may, consistently with the Fifth Amendment, impose for a permitted purpose restrictions upon property which produce like results.” Complainants do not question the power of Congress to control rents as part of a war-time anti-inflation program. The validity under the due process clause of the method of rent control which Congress has authorized cannot be judged apart from a consideration of the practical necessities of administration. Jacob Ruppert v. Caffey, 1920, 251 U.S. 264, 299, 301, 40 S.Ct. 141, 64 L.Ed. 260. “The Constitution as a continuously operating charter of government does not demand the impossible or the impractical.” Hirabayashi v. United States, June 21, 1943, 63 S.Ct. 1375, 1387, 87 L.Ed. —. In Nebbia v. New York, 1934, 291"
}
] |
106698 | process. Wage assignments do not fit this description. A wage assignment is created by an agreement which complies with the execution requirements set forth in the Illinois Wage Assignment and the FTC regulations. Ill.Rev.Stat. ch. 48 U 39.1 (1987). As discussed earlier, the singular quality of the wage assignment process, the quality which partially prompted the FTC regulations, is its lack of judicial safeguards. See American Financial Services, Inc. v. F.T.C., 767 F.2d 957, 974 (D.C.Cir.1985) (stating that wage assignments, in contrast to wage garnishments, do not require any judgment and can be filed without any judicial review of the creditor’s claim). Thus, wage assignments are not created through the judicial process and are not “judicial liens” under the Code. See REDACTED “Statutory liens” are the next possibility. A statutory lien is a “lien arising solely by statute on specified circumstances or conditions, or lien of distress for rent, but does not include security interest or judicial lien, whether or not such interest or lien is provided by or is dependent on a statute and whether or not such interest or lien is made fully effective by statute.” Code § 101(47) (emphasis added). The legislative history further emphasizes that a statutory lien cannot be based on “an agreement or a | [
{
"docid": "6756104",
"title": "",
"text": "Bankruptcy, 14th Ed., Vol. 4, 1(67.03 [1] quotes the following as the principle of Section 67a “as between creditors, ‘equality is equity’, and that the race of diligence must cease, with respect to legal proceedings against a person who is insolvent, at the commencement of four months preceding the filing of the pe tition. This .conclusion does not prevent the honest debtor seeking to work out from embarrassments from receiving present aid to that end, and from giving proper security for the aid received. But the one advancing money must take a present security other than that obtained through legal proceedings against an insolvent.” Collier goes on to say in its textual discussion “Contractual, common-law, equitable, and statutory liens may be created by the bankrupt or attach by operation of law at any time prior to bankruptcy without resulting invalidity, so far as § 67a is concerned, which is limited to invalidation of judicial liens under conditions to be discussed.” See footnote 2, fl67.03 Collier’s excepting contractually created liens from invalidation under § 67a(l). In re Smith, 8 F.Supp. 49 (W.D.N.Y. 1934), and In re Duffy, 34 F.Supp. 804 (W.D.N.Y.1940) cited below deal with garnishment proceedings and liens obtained by judgment creditors. These proceedings are expressly covered by § 67a(l). Seaboard v. Ottinger, supra, dealing with .wage assignments, held that an assignment was not a lien on wages earned after adjudication. Standing for the principle that an assignment of wages to be earned in the future is merely a contract and that no lien arises until the wages are actually earned, it seems to this Court that this lends support to the interpretation that the lien subsequently arising is a contractual lien, not one created by “legal or equitable process or proceeding.” There is substantial difference between a lien arising out of an assignment of wages agreement and one arising out of garnishment proceedings. Garnishment or other judicial proceedings to attach the assets of a debtor are nonconsensual arrangements, enabling a creditor to reach assets of the debtor to satisfy at least part of the debt owing him where the"
}
] | [
{
"docid": "6617104",
"title": "",
"text": "wage assignments must be “liens” under the Code. Second, the assignments must constitute “judicial liens.” Third, the debtor must have an interest in the property at the time of filing for bankruptcy. Fourth, the debtor must properly claim an exemption as to the property. Fifth, the creditor’s lien must impair the debtor’s exemption. See In re Johnson, 53 B.R. 919, 922 (Bankr.N.D.Ill.1985). The debtors’ motions easily satisfy the fourth and fifth requirements. The debtors may properly claim wages as exempt under the Illinois “wild card” exemption. Ill.Rev.Stat. ch. 110 1112-1001(b) (1987). Further, the wage assignments in these cases would impair that exemption— the debtors could claim the wages as exempt but for the creditors’ wage assignments. See Johnson, 53 B.R. at 923 (holding that a wage garnishment impairs the Illinois “wild card” exemption.) However, the motions raise serious questions as to the remaining three requirements: (1) whether an Illinois wage assignment is a “lien” under the Code, (2) if so, whether a wage assignment is a “judicial lien” under the Code, and (3) whether the debtors had an interest in the assigned wages when they filed for bankruptcy. C. Wage Assignment Law. Each of these three issues depends, to some extent, on the law that defining wage assignments in Illinois. See In re Weatherspoon, 101 B.R. 533, 535 (Bankr.N.D.Ill.1989) (analyzing Illinois state law to determine whether an Illinois wage garnishment was avoidable under section 522(f)(1)). The main sources of this law are the Illinois Wage Assignment Act, Ill.Rev. Stat. ch. 48 11 39.01 et seq. (1987), and the Federal Trade Commission (“FTC”) Credit Practice Regulations, 16 C.F.R. § 444.2(3) (1984). Before the FTC regulations in 1984, Illinois wage assignments were “a customary form of security required of an employee seeking credit either from pawnbrokers, installment plan merchants, wageloan corporations, small loan companies, so-called ‘loan sharks,’ and others.” People v. Redfield, 366 Ill. 562, 564, 10 N.E.2d 341 (1937). Under a typical wage assignment, a debtor assigned future wages to secure a debt. Ill.Rev.Stat. ch. 48 1139.1(2) (1987). The principal feature of a wage assignment is that it allows a creditor,"
},
{
"docid": "6617117",
"title": "",
"text": "satisfied by the pending motions. The debtors may have remedies with respect to wages deducted pursuant to their assignments, but these remedies do not include avoidance of judicial liens. CONCLUSION For the reasons stated above, the Debtors’ motions to avoid wage assignments under Code section 522(f)(1) are denied. Appropriate orders will be entered in each case. . Illinois has “opted out” of the federal exemptions, pursuant to section 522(b)(1) of the Code. Ill.Rev.Stat. ch. 110, ¶ 12-1201 (1987). Thus, Illinois law provides the relevant exemptions here. The Illinois \"wild card\" exemption allows debtors to protect \"[t]he debtor’s equity interest, not to exceed $2,000 in value, in any other property.\" Ill.Rev.Stat. ch. 110, If 12 — 1001(b) (1987) (emphasis added). The phrase \"in any other property” is broadly construed to favor debtors. In re Barker, 768 F.2d 191, 196 (7th Cir.1985). . The court assumes that the wage assignments involved in the pending cases are expressly revocable at will, since the complaints make no allegation that the assignments were unfair credit practices, and since these assignments were triggered by the debtor’s default, and thus were neither voluntary payment plans or assignments of wages already due, the only other allowable forms of assignments under the FTC regulations. . Voluntary payments to a creditor might, however, constitute voidable preferences under section 547(b)(1) of the Code, subject to the consumer debt limitation of section 547(c)(7). . See Weatherspoon, 101 B.R. at 535. In Weath-erspoon, the court held that the wage garnishments in Illinois are “purely a creature[s] of statute.” Id. at 535. However, despite its dependence on statute, the court held that wage garnishments constitute judicial liens because the Illinois statutes \"merely authorized the liens which arise through the judicial process.” Id. at 535. Wage garnishments arise through the judicial process because (1) the creditor must obtain a state court judgment, (2) file an affidavit and interrogatories with the court, and (3) the creditor must serve a summons which evidences the underlying judgment. Id. at 535-6. Thus, as its name suggests, the distinguishing characteristic of a judicial lien is its creation through the judicial"
},
{
"docid": "6617109",
"title": "",
"text": "it seems clear that, under the regulations, assignments of future wages executed to secure a debt have been fundamentally altered in this state. Before the regulations were adopted, Illinois wage assignments offered genuine security. The creditors obtained a claim on their debtors’ wages which could be enforced after the debtors defaulted and the creditor complied with the Illinois Wage Assignment Act. Under the regulations, these assignments offer no real security, since they must be expressly revocable at will. Because a debtor may now terminate wage deductions at any stage in the assignment process, it must be concluded that if an employer is required to deduct wages this is due to the debtor’s decision to allow the deduction. D. The Issues Raised by the Pending Motions. With the foregoing background, the three issues raised by the debtors’ section 522(f)(1) motions can be addressed. 1. Wage assignments are not “liens.” It has long been established that a wage assignment cannot operate as a lien on wages of a debtor earned after the filing of a bankruptcy. In re Miranda Soto, 667 F.2d 235, 237 (1st Cir.1981) (relying on Section 552(a) of the Code, which provides that “property acquired ... by the debtor after commencement of the case is not subject to any lien resulting from any security agreement entered into by the debtor before the commencement of the case”); Local Loan Co. v. Hunt, 292 U.S. 234, 243, 54 S.Ct. 695, 698, 78 L.Ed. 1230 (1934) (holding, under the 1898 Bankruptcy Act, that liens may not attach to property not yet in existence). Here, however, the question is whether the debtors’ wage assignments gave rise to any lien on the wages that they earned prior to their bankruptcies. The Code defines “liens” as “charge[s] against or interest in property to secure payment of a debt or performance of an obligation.” Code § 101(33). Under this definition, given the assumption that the assignments were revocable at will, there were no liens. Instead of giving the creditors a charge against or interest in the debtors’ wages, these assignments merely gave the debtors an opportunity"
},
{
"docid": "21611237",
"title": "",
"text": "this superiority, CTI was permitted to perfect its lien by complying with § 11, even after Lionel filed its bankruptcy petition. We therefore conclude that CTI’s post-petition conduct fits within the exception created by §§ 362(b)(3) and 546(b) and should not have been declared invalid by the bankruptcy court as a violation of the automatic stay. IV. Is CTI’s Lien Voidable as a Preferential Transfer? The final issue is whether CTI’s lien constitutes an impermissible preferential transfer. The Bankruptcy Code gives trustees in bankruptcy the authority to avoid any preferential transfer to a creditor of an interest of the debtor made during the ninety days prior to the petition date. See 11 U.S.C. § 547(b). CTI claims that this avoidance scheme does not apply to its lien because of § 547(c)(6) of the Bankruptcy Code, which provides that “[t]he trustee may not avoid under this section a transfer ... that is the fixing of a statutory lien that is not avoidable under section 545 of this title.” Although § 545 enumerates various conditions under which the trustee may avoid the fixing of a statutory lien, appellees do not assert that any of them are applicable. Instead, appellees vigorously argue that CTI’s filing of a notice of lien does not qualify as “the fixing of a statutory lien.” The Bankruptcy Code defines a statutory lien as a lien arising solely by force of a statute on specified circumstances or conditions, or lien of distress for rent, whether or not statutory, but does not include security interest or judicial lien, whether or not such interest or lien is provided by or is dependent on a statute and whether or not such interest or hen is made fully effective by statute. 11 U.S.C. § 101(53). In contrast, the Code defines a security interest as a “hen created by an agreement,” 11 U.S.C. § 101(51), and a judicial hen as a “hen obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding,” 11 U.S.C. § 101(36). The Code thus contemplates that hens created consensuahy (such as mortgage hens or UCC security"
},
{
"docid": "6251963",
"title": "",
"text": "find its lien to be a security interest, we should conclude that it is a statutory lien rather than a judicial lien. But, the Code defines a statutory lien thus: “[Sjtatutory lien” means lien arising solely by force of a statute on specified circumstances or conditions, or lien of distress for rent, whether or not statutory, but does not include security interest or judicial lien, whether or not such interest or lien is provided by or is dependent on a statute and whether or not such interest or lien is made fully effective by statute. 11 U.S.C. § 101(38), and the legislative history of the Code elaborates on the above definition as follows: The definition excludes judicial liens and security interests, whether or not they are provided for or are dependent on a statute. A statutory lien is only one that arises automatically, and is not based on an agreement to give a lien on a judicial action. Mechanics’, materialmen’s, and warehousemen’s liens are examples. Tax liens are also included in the definition of statutory lien. H.R.Rep.No.95-595, 95th Cong., 1st Sess. 314 (1977); S.Rep.No.95-989, 95th Cong., 2d Sess. 27 (1978), reprinted in [1978] U.S.Code Cong. & Ad.News 5787, 5813 (emphasis added). In the instant case, while the DPW’s lien arises through statutory authority, that statute itself requires that a judgment be obtained through judicial process in order for the lien to have full force and effect. Consequently, the DPW lien does not arise automatically by force of statute. Rather, by the very words of the statute upon which the DPW relies, judicial process is necessary to create that lien. Therefore, the DPW lien cannot be said to be a statutory lien under the Code. As a result of the above, we conclude that the DPW lien is a judicial lien, not a security interest or a statutory lien. II. The Impairment of the Debtors’ Exemptions. Under § 522(f)(1), a debtor may only avoid a judicial lien which impairs an exemption to which the debtor would other wise be entitled. The DPW argues that its lien does not impair an exemption"
},
{
"docid": "6617110",
"title": "",
"text": "re Miranda Soto, 667 F.2d 235, 237 (1st Cir.1981) (relying on Section 552(a) of the Code, which provides that “property acquired ... by the debtor after commencement of the case is not subject to any lien resulting from any security agreement entered into by the debtor before the commencement of the case”); Local Loan Co. v. Hunt, 292 U.S. 234, 243, 54 S.Ct. 695, 698, 78 L.Ed. 1230 (1934) (holding, under the 1898 Bankruptcy Act, that liens may not attach to property not yet in existence). Here, however, the question is whether the debtors’ wage assignments gave rise to any lien on the wages that they earned prior to their bankruptcies. The Code defines “liens” as “charge[s] against or interest in property to secure payment of a debt or performance of an obligation.” Code § 101(33). Under this definition, given the assumption that the assignments were revocable at will, there were no liens. Instead of giving the creditors a charge against or interest in the debtors’ wages, these assignments merely gave the debtors an opportunity to pay their defaulted obligations through payroll deductions. At any time they wished to stop the process, they had the right to do so; the creditors— like any unsecured creditor lacking a judgment — had to rely for payment on the willingness of the debtors to pay. This certainly was the result that the FTC regulations were designed to accomplish. Wage assignments that are terminable at the debtor’s will are not “liens” under the Code. 2. Wage assignments are not judicial liens. Even if the foregoing analysis were incorrect, and a revocable wage assignment could properly be considered a “lien,” the wage assignments in these cases still would not be “judicial liens.” The Code defines three types of liens: “judicial liens,” “statutory liens,” and “security interests.” These “three categories are mutually exclusive and are exhaustive except for certain common law liens.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 312 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6269. The Code distinguishes these categories by the manner in which each lien is obtained or created. In"
},
{
"docid": "6617115",
"title": "",
"text": "234, 54 S.Ct. 695, 78 L.Ed. 1230 (1934). It follows that a wage assignment, created by agreement, is a security interest to the extent that it is a lien of any kind, rather than a judicial lien subject to avoidance under section 522(f)(2) of the Code. 3. The debtors had no interest in the property at the time of filing. The final issue to be determined under section 522(f)(1) also indicates that the section is inapplicable to the facts asserted in the pending motions — these motions do not state any facts indicating that the debtors retained an interest in the assigned wages at the time their bankruptcies were filed. To determine whether the debtors retained such an interest in the assigned wages, the court must determine when the creditors obtained an unconditional right to the assigned wages under applicable state law. Weatherspoon, 101 B.R. at 537; Johnson, 53 B.R. at 923-924; Bryant v. General Electric Credit Corp., 58 B.R. 144, 145 (N.D.Ill.1986). As set forth above, a creditor obtains an unconditional right to the assigned wages under Illinois law upon satisfying the three conditions of service of a “notice of intent” on the debtor, service of a demand on the debtor’s employ, and passage of a five day grace period. Then, if the debtor has not notified its employer of any defenses, cure or revocation of the assignment, the creditor obtains an unconditional right to the funds. The motions fail to allege that the debtor served a “notice of defense”, or cured or revoked the assignment before the three stages passed. In fact, the motions and memoranda assert facts which are consistent with the opposite conclusion. The motions and memoranda state that the debtors defaulted, the creditors demanded the wages, and the employers deducted wages pursuant to the wage assignment. From the facts set forth in the motion, then, it appears that the creditors complied with the three stage process and obtained an unconditional right to the funds before these bankruptcy cases were filed. Thus, three separate requirements for the avoidance of a lien under section 522(f)(1) are not"
},
{
"docid": "10218725",
"title": "",
"text": "of a judgment and the service of process (i.e., the citation). Ill.Rev.Stat. ch. 110 § 2-1402 (1985). Therefore, like the wage deduction lien, it is authorized by statute but arises by virtue of the judgment-collection process. All cases that have addressed the matter are in accord that liens under the citation or wage deduction statutes are judicial liens. See, e.g., In re Bryant, 58 B.R. 144, 146 (N.D.Ill.1986) (“The [wage] garnishment is a judicial lien according to Illinois law”); Johnson, 53 B.R. at 922 (“A [wage] garnishment lien is a judicial lien”); Eino-der, 55 B.R. at 324 (“Illinois law clearly expresses the view that the initiation of a citation proceeding creates a judicial lien ...”); Foluke, 38 B.R. at 301 (judicial lien is created by issuance of a citation to discover assets). Accordingly, the liens imposed on the bank account (again, assuming there is any kind of a lien on the bank account) and the Debtors’ wages are judicial liens that may be avoided by section 522(f)(1) of the Bankruptcy Code, so long as the Debtors retained an interest in the encumbered funds when their bankruptcy cases began. 2. “TRANSFER” OF DEBTOR’S INTEREST The judgment creditors next argue that service of the wage deduction summonses and initiation of the citation proceedings resulted in “transfers” that divested the Debtors of all interest in the portions of future wages subject to deduction and the bank account. Since the summonses and citation were served before the Debtors filed their petitions, the judgment creditors contend that those funds never became part of the bankruptcy estates and therefore may not be claimed as exempt. If accepted, that argument would prevent the Debtors’ use of section 522(f)(1) to avoid the liens for two reasons. First, section 522(f) allows a debtor to avoid a judicial lien “to the extent that such lien impairs an exemption to which the debtor would have been entitled.” 11 U.S.C. § 522(f). An exemption is taken “from property of the estate.” 11 U.S.C. § 522(b). If the withheld funds never became property of the estate because they were absolutely transferred before the"
},
{
"docid": "6617114",
"title": "",
"text": "Cong., 1st Sess. 314 (1977). A wage assignment is not a statutory lien. The fact that the Illinois statutes recognize wage assignments is irrelevant. See Weatherspoon, 101 B.R. at 535-36. Instead, the crucial issue is how the wage assignment is created. A wage assignment is created by agreement between the parties and not automatically by statute. The final category is “security interests.” In contrast to judicial or statutory liens which do not require an agreement between the parties, a security interest is a “lien created by an agreement.” Bankruptcy Code § 101(45); Collier on Bankruptcy, ¶ 101.47. For example, mortgages are “security interests.” Collier, supra, at II 101.45. An Illinois wage assignment, if it is a lien at all, fits this definition. Illinois wage assignments, like mortgages, are created by written agreements that comply with applicable state law. Indeed, the Illinois courts have themselves recognized the similarity between mortgages and wage assignments. See Mallin v. Wenham, 209 Ill. 252, 256, 70 N.E. 564 (1904) overruled on other grounds Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230 (1934). It follows that a wage assignment, created by agreement, is a security interest to the extent that it is a lien of any kind, rather than a judicial lien subject to avoidance under section 522(f)(2) of the Code. 3. The debtors had no interest in the property at the time of filing. The final issue to be determined under section 522(f)(1) also indicates that the section is inapplicable to the facts asserted in the pending motions — these motions do not state any facts indicating that the debtors retained an interest in the assigned wages at the time their bankruptcies were filed. To determine whether the debtors retained such an interest in the assigned wages, the court must determine when the creditors obtained an unconditional right to the assigned wages under applicable state law. Weatherspoon, 101 B.R. at 537; Johnson, 53 B.R. at 923-924; Bryant v. General Electric Credit Corp., 58 B.R. 144, 145 (N.D.Ill.1986). As set forth above, a creditor obtains an unconditional right to the"
},
{
"docid": "6617103",
"title": "",
"text": "Code and so are within the jurisdiction of the district court. 28 U.S.C. § 1334(b). General Local Rule 2.33 of the Northern District of Illinois refers such matters to the bankruptcy judges of this district. Furthermore, because they concern the administration of the estate, these motions are “core matters” which, upon reference, a bankruptcy judge may determine on a final basis pursuant to 28 U.S.C. section 157(b)(2)(A). See In re Jamison, 93 B.R. 595, 596 (Bankr.S.D.Ohio 1988). B. Requirements under Section 522(f)(1). Section 522(f)(1) of the Bankruptcy Code is the sole basis on which the debtors in these cases seek relief. It provides, in relevant part: Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien in an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is a (1) a judicial lien; ... To obtain relief under this section, the debtors must satisfy five requirements. First, the wage assignments must be “liens” under the Code. Second, the assignments must constitute “judicial liens.” Third, the debtor must have an interest in the property at the time of filing for bankruptcy. Fourth, the debtor must properly claim an exemption as to the property. Fifth, the creditor’s lien must impair the debtor’s exemption. See In re Johnson, 53 B.R. 919, 922 (Bankr.N.D.Ill.1985). The debtors’ motions easily satisfy the fourth and fifth requirements. The debtors may properly claim wages as exempt under the Illinois “wild card” exemption. Ill.Rev.Stat. ch. 110 1112-1001(b) (1987). Further, the wage assignments in these cases would impair that exemption— the debtors could claim the wages as exempt but for the creditors’ wage assignments. See Johnson, 53 B.R. at 923 (holding that a wage garnishment impairs the Illinois “wild card” exemption.) However, the motions raise serious questions as to the remaining three requirements: (1) whether an Illinois wage assignment is a “lien” under the Code, (2) if so, whether a wage assignment is a “judicial lien” under the Code, and (3) whether the"
},
{
"docid": "6251962",
"title": "",
"text": "be more a judicial lien than a security interest. The DPW contends further, however, that under the Bankruptcy Code a security interest is any lien created by voluntary agreement of the parties while a judicial lien is only a lien created by involuntary judicial process. According to that argument, a lien which is created by voluntary judicial process (such as the lien in the instant case) is a security interest not a judicial lien. This argument was raised, and squarely rejected by us, in In re Natale, 5 B.R. 454, 6 B.C.D. 784, 2 C.B.C.2d 875 (Bkrtcy., E.D.Pa.1980). In that case, we held that a D.S.B. judgment created by a confession of judgment was a judicial lien not a security interest within the meaning of the Bankruptcy Code. We find no rea son to change our opinion as expressed in Natale. For all of the above reasons we reject the DPW’s argument that its lien is more a security interest than a judicial lien. The DPW asserts, in the alternative, that if we do not find its lien to be a security interest, we should conclude that it is a statutory lien rather than a judicial lien. But, the Code defines a statutory lien thus: “[Sjtatutory lien” means lien arising solely by force of a statute on specified circumstances or conditions, or lien of distress for rent, whether or not statutory, but does not include security interest or judicial lien, whether or not such interest or lien is provided by or is dependent on a statute and whether or not such interest or lien is made fully effective by statute. 11 U.S.C. § 101(38), and the legislative history of the Code elaborates on the above definition as follows: The definition excludes judicial liens and security interests, whether or not they are provided for or are dependent on a statute. A statutory lien is only one that arises automatically, and is not based on an agreement to give a lien on a judicial action. Mechanics’, materialmen’s, and warehousemen’s liens are examples. Tax liens are also included in the definition of statutory"
},
{
"docid": "10218720",
"title": "",
"text": "service of the summonses and the citation render section 522(f)(1) inapplicable. This Court rejects both arguments. 1. JUDICIAL VS. STATUTORY LIEN The judgment creditors correctly state that “the garnishment process [in Illinois] is purely a creature of statute.” Taylor v. Taylor, 44 Ill.2d 139, 144, 254 N.E.2d 445, 448 (1969); Roth v. Kaptowsky, 401 Ill. 424, 82 N.E.2d 661 (1948). That does not mean, however, that the lien on garnished funds is a “statutory lien” rather than a “judicial lien” for purposes of section 522(f)(1) of the Bankruptcy Code. Section 101(32) of the Bankruptcy Code provides: “judicial lien” means lien obtained by judgment, levy, sequestration or other legal or equitable process or proceeding. By contrast, section 101(47) of the Bankruptcy Code (emphasis added) provides: “statutory lien” means lien arising solely by force of a statute on specified circumstances or conditions, or lien of distress for rent, whether or not statutory, but does not include security interest or judicial lien, whether or not such interest or lien is provided by or is dependent on a statute and whether or not such interest or lien is made fully effective by statute. Neither the lien on wages nor the alleged lien on the bank account arose solely by force of a statute. The statutes merely authorized the liens that arose through the judgment process. Moreover, the judgment creditors’ liens fall squarely within the exceptions to a “statutory lien” under the Code. A “statutory lien” does not include a “judicial lien, whether or not such ... lien is provided by or dependent on a statute.” The judgment creditors’ garnishment and citation liens are judicial liens because they arise by virtue of the judicial proceedings and the service of process on the employers and the bank. Without the judicial proceedings and service of process, the judgment creditors’ liens would not exist. That distinguishes judicial liens from statutory liens. “A statutory lien is only one that arises automatically, and is not based on ... judicial action.” H.R.Rep. No. 595, 95th Cong, 1st Sess. 314 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 27 (1978), U.S.Code Cong."
},
{
"docid": "6617111",
"title": "",
"text": "to pay their defaulted obligations through payroll deductions. At any time they wished to stop the process, they had the right to do so; the creditors— like any unsecured creditor lacking a judgment — had to rely for payment on the willingness of the debtors to pay. This certainly was the result that the FTC regulations were designed to accomplish. Wage assignments that are terminable at the debtor’s will are not “liens” under the Code. 2. Wage assignments are not judicial liens. Even if the foregoing analysis were incorrect, and a revocable wage assignment could properly be considered a “lien,” the wage assignments in these cases still would not be “judicial liens.” The Code defines three types of liens: “judicial liens,” “statutory liens,” and “security interests.” These “three categories are mutually exclusive and are exhaustive except for certain common law liens.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 312 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6269. The Code distinguishes these categories by the manner in which each lien is obtained or created. In re Brunson, 87 B.R. 304, 311 (Bankr.D.N.J.1988). Judicial liens are “obtained by judgment, levy, sequestration or other legal or equitable process or proceeding.” Code § 101(32). Judicial liens also consist of liens which are “dependent on a statute” as long as the lien “arises from” the judicial process. Code § 101(47). For example, Illinois wage garnishments are “judicial liens” because they are created through the judicial process. Wage assignments do not fit this description. A wage assignment is created by an agreement which complies with the execution requirements set forth in the Illinois Wage Assignment and the FTC regulations. Ill.Rev.Stat. ch. 48 U 39.1 (1987). As discussed earlier, the singular quality of the wage assignment process, the quality which partially prompted the FTC regulations, is its lack of judicial safeguards. See American Financial Services, Inc. v. F.T.C., 767 F.2d 957, 974 (D.C.Cir.1985) (stating that wage assignments, in contrast to wage garnishments, do not require any judgment and can be filed without any judicial review of the creditor’s claim). Thus, wage assignments are not created through"
},
{
"docid": "10218721",
"title": "",
"text": "and whether or not such interest or lien is made fully effective by statute. Neither the lien on wages nor the alleged lien on the bank account arose solely by force of a statute. The statutes merely authorized the liens that arose through the judgment process. Moreover, the judgment creditors’ liens fall squarely within the exceptions to a “statutory lien” under the Code. A “statutory lien” does not include a “judicial lien, whether or not such ... lien is provided by or dependent on a statute.” The judgment creditors’ garnishment and citation liens are judicial liens because they arise by virtue of the judicial proceedings and the service of process on the employers and the bank. Without the judicial proceedings and service of process, the judgment creditors’ liens would not exist. That distinguishes judicial liens from statutory liens. “A statutory lien is only one that arises automatically, and is not based on ... judicial action.” H.R.Rep. No. 595, 95th Cong, 1st Sess. 314 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 27 (1978), U.S.Code Cong. & Admin.News 5787, 5813, 6271 (emphasis added). Examples of statutory liens which arise automatically are tax liens, mechanics’ liens, and warehousemen’s liens, none of which require prior judicial proceedings. Id.; Colliers on Bankruptcy, II 101.47 at 101-112 (15th Ed.1988). The wages that are the object of these contested matters are held pursuant to Ill. Rev.Stat. ch. 110 Article XII, Part 8. Section 12-805 establishes the procedures for issuance of a summons in a wage deduction proceeding. A judgment creditor must file an affidavit and interrogatories with the Clerk of the Court, who will then issue a summons against the judgment debtor’s employer. That section also requires that “a copy of the underlying judgment or certification by the Clerk of the Court which entered the judgment, or by the attorney for the judgment creditor, setting forth the amount of the judgment, the name of the Court and the number of the case” shall accompany the summons. Ill. Rev.Stat. ch. 110 § 12-805. Section 12-808 provides that “[t]he judgment or balance due thereon is a lien on"
},
{
"docid": "6617113",
"title": "",
"text": "the judicial process and are not “judicial liens” under the Code. See In re Morris, 333 F.Supp. 204 (E.D.Mich.1971) (holding that a Michigan wage assignment was not a lien “obtained by attachment, judgment, levy or other equitable process” under section 67 of the Bankruptcy Act because Michigan wage assignments were created by contract). “Statutory liens” are the next possibility. A statutory lien is a “lien arising solely by statute on specified circumstances or conditions, or lien of distress for rent, but does not include security interest or judicial lien, whether or not such interest or lien is provided by or is dependent on a statute and whether or not such interest or lien is made fully effective by statute.” Code § 101(47) (emphasis added). The legislative history further emphasizes that a statutory lien cannot be based on “an agreement or a judicial action.” H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 314 (1977), U.S.Code Cong. & Admin.News 1978, p. 6271. Examples of statutory liens include tax liens, mechanics liens, and warehouse liens. H.R.Rep. No. 595, 95th Cong., 1st Sess. 314 (1977). A wage assignment is not a statutory lien. The fact that the Illinois statutes recognize wage assignments is irrelevant. See Weatherspoon, 101 B.R. at 535-36. Instead, the crucial issue is how the wage assignment is created. A wage assignment is created by agreement between the parties and not automatically by statute. The final category is “security interests.” In contrast to judicial or statutory liens which do not require an agreement between the parties, a security interest is a “lien created by an agreement.” Bankruptcy Code § 101(45); Collier on Bankruptcy, ¶ 101.47. For example, mortgages are “security interests.” Collier, supra, at II 101.45. An Illinois wage assignment, if it is a lien at all, fits this definition. Illinois wage assignments, like mortgages, are created by written agreements that comply with applicable state law. Indeed, the Illinois courts have themselves recognized the similarity between mortgages and wage assignments. See Mallin v. Wenham, 209 Ill. 252, 256, 70 N.E. 564 (1904) overruled on other grounds Local Loan Co. v. Hunt, 292 U.S."
},
{
"docid": "10218719",
"title": "",
"text": "522(f)(1), which authorizes the Debtors to avoid “judicial liens” that impair exemptions. That section provides: (f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (1) a judicial lien; ... The judgment creditors argue that the liens created by the post-judgment collection process are not judicial liens, but statutory liens, and consequently are unavoidable under section 522(f)(1). The judgment creditors also argue that service of the wage deduction summonses and the citation to discover assets worked an immediate transfer of the affected funds that divested the Debtors of all interest in those funds. Since lien avoidance under section 522(f)(1) requires that the Debtors had some interest in the encumbered property when the bankruptcy case was commenced. See In re Johnson, 53 B.R. 919, 922 (Bankr.N.D.Ill.1985), the judgment creditors contend that the alleged absolute transfers upon service of the summonses and the citation render section 522(f)(1) inapplicable. This Court rejects both arguments. 1. JUDICIAL VS. STATUTORY LIEN The judgment creditors correctly state that “the garnishment process [in Illinois] is purely a creature of statute.” Taylor v. Taylor, 44 Ill.2d 139, 144, 254 N.E.2d 445, 448 (1969); Roth v. Kaptowsky, 401 Ill. 424, 82 N.E.2d 661 (1948). That does not mean, however, that the lien on garnished funds is a “statutory lien” rather than a “judicial lien” for purposes of section 522(f)(1) of the Bankruptcy Code. Section 101(32) of the Bankruptcy Code provides: “judicial lien” means lien obtained by judgment, levy, sequestration or other legal or equitable process or proceeding. By contrast, section 101(47) of the Bankruptcy Code (emphasis added) provides: “statutory lien” means lien arising solely by force of a statute on specified circumstances or conditions, or lien of distress for rent, whether or not statutory, but does not include security interest or judicial lien, whether or not such interest or lien is provided by or is dependent on a statute"
},
{
"docid": "6617112",
"title": "",
"text": "re Brunson, 87 B.R. 304, 311 (Bankr.D.N.J.1988). Judicial liens are “obtained by judgment, levy, sequestration or other legal or equitable process or proceeding.” Code § 101(32). Judicial liens also consist of liens which are “dependent on a statute” as long as the lien “arises from” the judicial process. Code § 101(47). For example, Illinois wage garnishments are “judicial liens” because they are created through the judicial process. Wage assignments do not fit this description. A wage assignment is created by an agreement which complies with the execution requirements set forth in the Illinois Wage Assignment and the FTC regulations. Ill.Rev.Stat. ch. 48 U 39.1 (1987). As discussed earlier, the singular quality of the wage assignment process, the quality which partially prompted the FTC regulations, is its lack of judicial safeguards. See American Financial Services, Inc. v. F.T.C., 767 F.2d 957, 974 (D.C.Cir.1985) (stating that wage assignments, in contrast to wage garnishments, do not require any judgment and can be filed without any judicial review of the creditor’s claim). Thus, wage assignments are not created through the judicial process and are not “judicial liens” under the Code. See In re Morris, 333 F.Supp. 204 (E.D.Mich.1971) (holding that a Michigan wage assignment was not a lien “obtained by attachment, judgment, levy or other equitable process” under section 67 of the Bankruptcy Act because Michigan wage assignments were created by contract). “Statutory liens” are the next possibility. A statutory lien is a “lien arising solely by statute on specified circumstances or conditions, or lien of distress for rent, but does not include security interest or judicial lien, whether or not such interest or lien is provided by or is dependent on a statute and whether or not such interest or lien is made fully effective by statute.” Code § 101(47) (emphasis added). The legislative history further emphasizes that a statutory lien cannot be based on “an agreement or a judicial action.” H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 314 (1977), U.S.Code Cong. & Admin.News 1978, p. 6271. Examples of statutory liens include tax liens, mechanics liens, and warehouse liens. H.R.Rep. No. 595, 95th"
},
{
"docid": "6617118",
"title": "",
"text": "were triggered by the debtor’s default, and thus were neither voluntary payment plans or assignments of wages already due, the only other allowable forms of assignments under the FTC regulations. . Voluntary payments to a creditor might, however, constitute voidable preferences under section 547(b)(1) of the Code, subject to the consumer debt limitation of section 547(c)(7). . See Weatherspoon, 101 B.R. at 535. In Weath-erspoon, the court held that the wage garnishments in Illinois are “purely a creature[s] of statute.” Id. at 535. However, despite its dependence on statute, the court held that wage garnishments constitute judicial liens because the Illinois statutes \"merely authorized the liens which arise through the judicial process.” Id. at 535. Wage garnishments arise through the judicial process because (1) the creditor must obtain a state court judgment, (2) file an affidavit and interrogatories with the court, and (3) the creditor must serve a summons which evidences the underlying judgment. Id. at 535-6. Thus, as its name suggests, the distinguishing characteristic of a judicial lien is its creation through the judicial process."
},
{
"docid": "6617108",
"title": "",
"text": "plan or preauthorized payment plan, commencing at the time of the transaction, in which the consumer authorizes a series of wage deductions as a method of making each payment, or (iii) The assignment applies only to wages or other earnings at the time of the assignment. 16 CFR ch. 1 § 444.2(a)(3) (1984). The FTC emphasized that expressly revocable wage assignments were acceptable because they are “truly voluntary.” 49 Fed.Reg. at 7760 fn. 91. Payroll deductions plans were allowed because such plans are methods of payment as the obligation becomes due and not a collection. Id. at 7760. Wage assignment of wages earned at the time of the assignment were allowed in order to eliminate a technical problem for California creditors. Id. at 7760. The plain thrust of the regulations is to limit wage assignments to voluntary payments and eliminate the use of wage assignments as a method of collecting debts, without judicial process, upon a debt- or’s alleged default. Although there appear to be no decisions applying the FTC regulations to Illinois wage assignments, it seems clear that, under the regulations, assignments of future wages executed to secure a debt have been fundamentally altered in this state. Before the regulations were adopted, Illinois wage assignments offered genuine security. The creditors obtained a claim on their debtors’ wages which could be enforced after the debtors defaulted and the creditor complied with the Illinois Wage Assignment Act. Under the regulations, these assignments offer no real security, since they must be expressly revocable at will. Because a debtor may now terminate wage deductions at any stage in the assignment process, it must be concluded that if an employer is required to deduct wages this is due to the debtor’s decision to allow the deduction. D. The Issues Raised by the Pending Motions. With the foregoing background, the three issues raised by the debtors’ section 522(f)(1) motions can be addressed. 1. Wage assignments are not “liens.” It has long been established that a wage assignment cannot operate as a lien on wages of a debtor earned after the filing of a bankruptcy. In"
},
{
"docid": "6617116",
"title": "",
"text": "assigned wages under Illinois law upon satisfying the three conditions of service of a “notice of intent” on the debtor, service of a demand on the debtor’s employ, and passage of a five day grace period. Then, if the debtor has not notified its employer of any defenses, cure or revocation of the assignment, the creditor obtains an unconditional right to the funds. The motions fail to allege that the debtor served a “notice of defense”, or cured or revoked the assignment before the three stages passed. In fact, the motions and memoranda assert facts which are consistent with the opposite conclusion. The motions and memoranda state that the debtors defaulted, the creditors demanded the wages, and the employers deducted wages pursuant to the wage assignment. From the facts set forth in the motion, then, it appears that the creditors complied with the three stage process and obtained an unconditional right to the funds before these bankruptcy cases were filed. Thus, three separate requirements for the avoidance of a lien under section 522(f)(1) are not satisfied by the pending motions. The debtors may have remedies with respect to wages deducted pursuant to their assignments, but these remedies do not include avoidance of judicial liens. CONCLUSION For the reasons stated above, the Debtors’ motions to avoid wage assignments under Code section 522(f)(1) are denied. Appropriate orders will be entered in each case. . Illinois has “opted out” of the federal exemptions, pursuant to section 522(b)(1) of the Code. Ill.Rev.Stat. ch. 110, ¶ 12-1201 (1987). Thus, Illinois law provides the relevant exemptions here. The Illinois \"wild card\" exemption allows debtors to protect \"[t]he debtor’s equity interest, not to exceed $2,000 in value, in any other property.\" Ill.Rev.Stat. ch. 110, If 12 — 1001(b) (1987) (emphasis added). The phrase \"in any other property” is broadly construed to favor debtors. In re Barker, 768 F.2d 191, 196 (7th Cir.1985). . The court assumes that the wage assignments involved in the pending cases are expressly revocable at will, since the complaints make no allegation that the assignments were unfair credit practices, and since these assignments"
}
] |
723672 | ALJ appointed a different medical expert, Dr. Harlan Melik. After hearing Dr. Melik’s testimony, the ALJ concluded that there was no medical evidence of an objective nature to establish that Mendes had a severe impairment before her last insured date. The ALJ therefore denied benefits, and the Appeals Council denied review, making the denial the Commissioner’s final decision. Mendes filed this suit in the district court seeking review of the Commissioner’s decision, and the district court entered judgment for the Commissioner. The district court had jurisdiction under 42 U.S.C. § 405(g) (2000) to review the Commissioner’s determination to deny benefits, and our jurisdiction arises under 28 U.S.C. § 1291 (2000). We review the district court’s judgment de novo. REDACTED Section 405(g) provides that the Commissioner’s findings of fact are conclusive if supported by substantial evidence. Substantial evidence is such evidence as a reasonable mind would accept as adequate to support a conclusion. Newell, 347 F.3d at 545. We exercise plenary review over questions of law. Id. Under 20 C.F.R. § 404.1520 (2003) (as revised by 68 F.R. 51153 (Aug. 26, 2003)), evaluation of disability proceeds in a five-step sequence. At the first step, the Commissioner asks whether the claimant is still working, § 404.1520(a)(4)(i); if so, the claimant is not disabled. Second, the Commissioner determines whether the claimant has a severe impairment — in other words, an impairment which significantly limits his or her physical or mental ability to | [
{
"docid": "22131424",
"title": "",
"text": "was of a slowly progressive nature, and the medical evidence was ambiguous with regard to the disability onset date, the Appeals Council could not have inferred an onset date based on an informed judgment of the facts without consulting a medical advisor.”); Bailey v. Chater, 68 F.3d 75, 79 (4th Cir.1995) (“[T]he date on which the synergy [of the claimant’s numerous ailments] reached disabling severity remains an enigma. In the absence of clear evidence documenting the progression of Bailey’s condition, the ALJ did not have the discretion to forgo consultation with a medical advisor.”). III. CONCLUSION A district court, after reviewing the. decision of the Commissioner may under 42 U.S.C. § 405(g) affirm, modify, or reverse the Commissioner’s decision with or without a remand to the Commissioner for a rehearing. See Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir.1984). A court of appeals also retains this discretion and, in reversing or modifying the Commissioner’s decision, may choose to direct a remand of the case to the Commissioner for a further hearing or simply direct the district court to order the award of benefits. Id. But a court of appeals should make the decision to direct the district court to order the award of benefits only when the administrative record of the case has been developed fully and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits. Id. at 221-22. As Newell notes, this case has not been developed fully as the ALJ denied her claim at step two of the sequential evaluation on erroneous bases. He failed properly to review the evidence in the record dated post August 31, 1997, and he improperly used Newell’s lack of treatment during her coverage period as a basis for discrediting her credibility. Finally, the ALJ failed to comply with SSR 83-20, and he failed to consult with a medical advisor to determine the onset date of Newell’s alleged disability. It is therefore necessary to reverse the district court’s order affirming the Commissioner’s denial of benefits. For the foregoing reasons we will reverse"
}
] | [
{
"docid": "22763266",
"title": "",
"text": "to Udena’s testimony, Vasquez described Stout’s inability to work without certain accommodations. During a supplemental hearing in March 2002, a vocational expert (“VE”) testified. In response to the ALJ’s hypothetical, the VE opined that Stout could perform one of his previous jobs and other jobs in the national economy. In his decision, the ALJ found Stout able to perform his past relevant work as a vine pruner and, therefore, not disabled within the meaning of the Social Security Act. The Appeals Council denied Stout’s request for review, making the ALJ’s decision the Commissioner’s final decision. See 20 C.F.R. § 404.981. Stout sought judicial review in the United States District Court for the District of Oregon, which affirmed the Commissioner’s decision. Stout timely appeals. II We review de novo the district court’s affirmance of the Commissioner’s final decision. Webb v. Barnhart, 433 F.3d 683, 685-86 (9th Cir.2005). We will uphold the Commissioner’s denial of benefits if the Commissioner applied the correct legal standards and substantial evidence supports the decision. Id. at 686. III A To medically qualify for benefits under the Social Security Act, a claimant must establish “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). In assessing whether a claimant is disabled, the ALJ follows a five-step, sequential evaluation process: Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or her ability to work? If so, proceed to step three. If not, the claimant is not disabled. Step three: Does the claimant’s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four. Step four: Does the claimant possess the residual functional capacity (“RFC”) to perform his"
},
{
"docid": "6541996",
"title": "",
"text": "(“VE”) testified at the hearing held before the second ALJ on September 13, 1994. (tr. 95-134). On January 25, 1995, the ALJ issued her decision denying benefits, (tr. 14-25). The Appeals Council subsequently denied the plaintiffs request for review of the ALJ’s decision, concluding that provisions contained in 20 C.F.R. § 416.1470 for SSI claims under Title XVI of the Act do not provide any basis for granting plaintiffs request. (tr. 6-7). The ALJ’s decision is, therefore, the Secretary’s final decision. The plaintiff filed her present motion for summary judgment on March 4, 1996. The Commissioner filed a cross-motion for summary judgment on April 3, 1996. The plaintiff filed a reply to the Commissioner’s brief on April 18,1996. The standard of review of cases before this Court is whether the decision of the Commissioner to deny SSI benefits is supported by substantial evidence. 42 U.S.C.A. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938)); Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.1989); Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981). Substantial evidence is “less than a preponderance, but must be such as a reasonable person would accept as adequate to support a conclusion.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir.1986) (citations omitted). The Commissioner established a five (5) step sequential evaluation process in 20 C.F.R. §§ 404.1520, 416.920 (1995) to be used for determining whether a person is disabled within the meaning of the Social Security Act, 42 U.S.C.A. §§ 401-433, 1381-1383d. The first two (2) steps involve threshold determinations of whether the claimant is presently working and whether she has an impairment which meets the duration requirement and significantly limits her ability to work. See 20 C.F.R. §§ 404.1520(a)-(e); 416.909; 416.920(a)-(c) (1995). In the third step, the medical evidence of the claimant’s impairment is compared to a list (the “listings”) of impairments presumed severe enough to preclude any gainful work. See 20 C.F.R. Part 404, Sub-part"
},
{
"docid": "22740718",
"title": "",
"text": "decision by the Appeals Council, asserting the decision was not supported by substantial evidence. In March 1996, the Appeals Council denied her request for review, ren dering the ALJ’s decision the final decision of the Commissioner for purposes of judicial review. Having exhausted her administrative remedies, in April 1996, Burnett sought review of the Commissioner’s final decision in U.S. District Court pursuant to 42 U.S.C. § 405(g). The District Court affirmed the Commissioner’s denial of benefits and dismissed Burnett’s case in August 1999. II. Discussion We review the ALJ’s decision under the same standard of review as the District Court, to determine whether there is substantial evidence on the record to support the ALJ’s decision. See 42 U.S.C. § 405(g); Plummer v. Apfel, 186 F.3d 422, 427 (8d Cir.1999) (citing Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir.1994)). Substantial evidence has been defined as “more than a mere scintilla”; it means “such relevant evidence as a reasonable mind might accept as adequate.” Plummer, 186 F.3d at 427 (internal quotations omitted). In order to establish a disability under the Social Security Act, Burnett must demonstrate some “ ‘medically determinable basis for an impairment that prevents him from engaging in any “substantial gainful activity” for a statutory twelvemonth period.’ ” Plummer, 186 F.3d at 427 (quoting Stunkard v. Secretary of Health & Human Servs., 841 F.2d 57, 59 (3d Cir.1988)); see also 42 U.S.C. § 423(d)(1). Burnett is considered unable to engage in any substantial gainful activity “ ‘only if [her] physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.’ ” Id. at 427-28 (quoting 42 U.S.C. § 423(d)(2)(A)). In Plummer, we recounted the five step sequential evaluation for determining whether a claimant is under a disability, as set forth in 20 C.F.R. § 404.1520: In step one, the Commissioner must determine whether the claimant is currently engaging in substantial gainful activity. 20 C.F.R. §"
},
{
"docid": "22323337",
"title": "",
"text": "an ALJ issued a decision on March 28, 1995 that was consistent with previous agency determinations. The ALJ found that the medical evidence established claimant’s hypertension, history of lumbosacral strain with low back pain, and gastritis. J.A. at 22 (ALJ Decision at 5). However, at Step Four of the five-step sequential analysis prescribed by 20 C.F.R. § 404.1520 (1997) for evaluating disability, the ALJ determined that since the claimant retained the residual functional capacity, despite his impairments, to perform “the full range of medium work” including his past relevant work as a press machine operator, the claimant was not disabled for social security purposes. J.A. at 21 (ALJ Decision at 4). The Appeals Council declined review on August 15, 1995, and subsequently on August 22,1996 the district court adopted the magistrate judge’s Report and Recommendation and granted summary judgment in favor of the Commissioner. The district court had original jurisdiction to review the Commissioner’s final administrative decision pursuant to 42 U.S.C. § 405(g). This court has appellate jurisdiction, pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, over the district court’s final judgment which Walters has timely appealed. II. ANALYSIS This court must affirm the Commissioner’s conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); see also Preslar v. Secretary of Health and Human Servs., 14 F.3d 1107, 1110 (6th Cir.1994). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). Accordingly, this court “may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984). Under the Social Security Act, 42 U.S.C. § 423(a), an individual is entitled to disability insurance benefit payments if he (1) is insured"
},
{
"docid": "21097872",
"title": "",
"text": "Following a supplemental hearing, the ALJ again evaluated Wheeler’s claim according to the five-step sequential analysis prescribed by the social security regulations. See 20 C.F.R. §§ 404.1520(a)-(f); Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (describing the five-step analysis). The ALJ determined that Wheeler met the disability insured status requirements as of February 25, 1992, as she had not engaged in substantial gainful activity since that date. The ALJ also found, however, that although Wheeler suffered from severe impairments, her impairments were not listed in, nor medically equal to, those listed in 20 C.F.R. § 404, Subpart P, Appendix 1. The ALJ concluded that Wheeler was unable to perform her past relevant work, but possessed the residual functional capacity to perform a significant number of jobs in the national economy. Consequently, the ALJ found that Wheeler was not under a disability as defined in the Social Security Act and denied her application for benefits accordingly. The Appeals Council denied Wheeler’s request for further review, thereby making the ALJ’s decision the final decision of the Commissioner. Wheeler then sought review in the district court pursuant to 42 U.S.C. § 405(g). The district court affirmed the decision of the Commissioner. On appeal before this court, Wheeler argues that the ALJ erred by: (1) failing to properly consider the testimony of Wheeler and her husband, pursuant to Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984) (subsequent history omitted); (2) failing to consider the totality of the medical evidence and instead unduly relying upon the findings of a non-treating physician; and (3) improperly relying upon the testimony of the vocational expert, which was inconsistent with the record. II. We consider the Commissioner’s denial of benefits to determine whether substantial evidence on the whole record supports the decision. Reeder v. Apfel, 214 F.3d 984, 987 (8th Cir.2000). Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support the Commissioner’s conclusion. Craig v. Apfel, 212 F.3d 433, 435 (8th Cir.2000). The court is required to review the administrative record as a whole, considering evidence which"
},
{
"docid": "22058498",
"title": "",
"text": "months. The Appeals Council denied her request for review, and the District Court affirmed the ALJ’s decision. Schaudeck alleges that the ALJ erred by: (1) holding that her impairment did not meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1; (2) failing to properly evaluate the medical evidence and her subjective complaints of pain; and (3) failing to consider her nonexertional impairments. We have plenary review of all legal issues, see Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir.1995), and review the ALJ’s findings of fact to determine whether they are supported by substantial evidence. See 42 U.S.C. § 405(g). Overall, the substantial evidence standard is deferential and includes deference to inferences drawn from the facts if they, in turn, are supported by substantial evidence. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir.1986). To determine whether a finding is supported by substantial evidence, we must review the record as a whole. See 5 U.S.C. § 706. II. A social security insurance benefits claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(2)(A). The Commissioner evaluates each case according to a five-step process until a finding of “disabled” or “not disabled” is made. See 20 C.F.R. § 404.1520(a). The sequence is essentially as follows: (1) if the claimant is currently engaged in substantial gainful employment, she will be found not disabled; (2) if the claimant does not suffer from a “severe impairment,” she will be found not disabled; (3) if a severe impairment meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and has lasted or is expected to last continually for at least twelve months, then the claimant will be found disabled; (4) if the severe impairment does not meet prong (3), the Commissioner considers the claimant’s residual functional capacity (“RFC”) to determine whether she can perform"
},
{
"docid": "22070959",
"title": "",
"text": "in the national economy. The Social Security Administrators Office of Hearings and Appeals denied Mr. Osen-brock’s request for review of the ALJ’s decision. Accordingly, the ALJ’s decision became the final decision of the Commissioner. Mr. Osenbrock filed an appeal from the Commissioner’s final decision before the district court. The District Court affirmed the Commissioner’s decision. Mr. Osen-brock has timely appealed from the district court’s order. We have jurisdiction pursuant to 28 U.S.C. § 1291. Ill In his appeal to this court, Mr. Osenbrock contends, that the decision of the Commissioner that Mr. Osenbrock is capable of performing work that is available in significant numbers in the national economy is not supported by substantial evidence. We review de novo a district court’s order affirming the Commissioner’s denial of benefits. Morgan v. Commissioner of the Social Security Administration, 169 F.3d 595, 599 (9th Cir.1999). Our review of the Commissioner’s decision to deny benefits is limited to determining (1) whether there is substantial evidence in the record as a whole to support the findings of the Commissioner; and (2) whether the correct legal standards were applied. Id.; see 42 U.S.C. § 405(g). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Morgan, 169 F.3d at 599. “Where the evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Id. Claims of disability are evaluated under a five-step sequential procedure. See 20 C.F.R. § 404.1520(a)-®- At issue in this appeal is whether the Commissioner has sustained his burden of showing, at Step Five, that, in light of Mr. Osenbrock’s residual functional capacity, he can engage in other substantial gainful work that exists in the national economy. See 20 C.F.R. § 404.1520®. There are two ways for the Commissioner to meet his Step Five burden: (1) the testimony of a VE; or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir.1999). Where the claimant has significant non-exertional impairments, however, the ALJ cannot"
},
{
"docid": "22431880",
"title": "",
"text": "II. We review the district court’s order affirming the Commissioner’s denial of benefits de- novo. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.1996). We uphold the Commissioner’s decision denying benefits if the Commissioner applied the proper legal standard and there is substantial evidence in the record as a whole to support the decision. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir.1986). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). III. A. Relevant Legal Framework The Social Security Act defines disability as “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A claimant bears the burden of establishing disability under the Act. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999). To determine whether a claimant has established disability, an ALJ must evaluate the evidence adduced by following a five-step, sequential analysis. 20 C.F.R. § 404.1520. At step one, the ALJ examines whether the claimant is engaged in substantial gainful employment activity. Id. § 404.1520(a)(4)(i). At step two, the ALJ assesses whether the claimant has a medically severe impairment or combination of impairments that significantly limits his ability to do basic work activities. Id. § 404.1520(a)(4)(h). The “ability to do basic work activities” is defined as “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(b). For purposes of Webb’s petition, the most relevant activities include the ability to perform “physical functions such as walking, sitting, lifting, pushing, pulling, reaching, carrying, or handling.” Id. An impairment is not severe if it is merely “a slight abnormality (or combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities.” S.S.R. No. 96-3(p) (1996). If the ALJ finds that the claimant lacks a"
},
{
"docid": "22896771",
"title": "",
"text": "expert, and a vocational expert testified. At the conclusion of the hearing, the ALJ referred Martinez to an internist for a consultative examination. After reviewing the additional evidence, the ALJ determined that Martinez was not disabled within the meaning of the Social Security Act (the Act). The Appeals Council denied Martinez’ request for review, and the decision of the ALJ became the final decision of the Commissioner under 42 U.S.C. § 405(g). Martinez filed suit in the district court seeking judicial review of the Commissioner’s decision. The Commissioner answered the complaint and both parties filed briefs. The magistrate judge recommended that the complaint be dismissed, finding substantial evidence to support the Commissioner’s determination that Martinez was not disabled. After a de novo review, the district court adopted the magistrate judge’s factual findings and legal conclusions, overruled Martinez’ objections to the recommendation, and dismissed the complaint. This appeal ensued. II ANALYSIS A. Legal Background Appellate review of the Commissioner’s denial of disability benefits is limited to determining whether (1) the decision is supported by substantial evidence and (2) proper legal standards were used to evaluate the evidence. Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.1990). If the Commissioner’s findings are supported by substantial evidence, then the findings are conclusive and the Commissioner’s decision must be affirmed. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422, 28 L.Ed.2d 842 (1971). “Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Villa, 895 F.2d at 1021-22 (internal quotations and citations omitted). In evaluating a disability claim, the Commissioner must follow a five-step sequential process to determine whether (1) the claimant is presently working; (2) the claimant’s ability to work is significantly lim ited by a physical or mental impairment; (3) the claimant’s impairment meets or equals an impairment listed in the appendix to the regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the claimant cannot presently perform relevant work. See Muse v."
},
{
"docid": "23138873",
"title": "",
"text": "the Appeals Council was denied, the decision of the ALJ became the final ruling of the Commissioner. Having exhausted her administrative remedies, McCrea filed a complaint in the United States District Court for the District of New Jersey, seeking review of the Commissioner’s denial of benefits. On June 12, 2003, the district court issued an opinion affirming the Commissioner’s decision, finding that it was supported by substantial evidence. Accordingly, the district court entered an order dismissing McCrea’s action. II. Analysis While we exercise plenary review over the district court’s order of dismissal, we review the Commissioner’s denial of benefits to determine whether it is supported by substantial evidence on the record as a whole. See Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 549 (3d Cir.2003) (citing Podedworny v. Harris, 745 F.2d 210, 221-22 (3d Cir.1984)); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Substantial evidence is “such relevant evi dence as a reasonable mind might accept as adequate to support a conclusion.” Newell, 347 F.3d at 545 (quotation and citation omitted). Although substantial evidence is more than a mere scintilla, it need not rise to the level of a preponderance. Id. In determining whether an applicant is disabled within the meaning of the Act, and therefore eligible for benefits, the Commissioner applies a five-step sequential evaluation process. This court has on several prior occasions set forth each step in detail, see, e.g., Newell, 347 F.3d at 545-46; although repetitious, we briefly mention these steps as well. The Commissioner inquires, in turn, whether an applicant: (1) is engaged in substantial gainful activity; (2) suffers from an impairment or combination of impairments that is “severe”; (3) suffers from an impairment or combination of impairments that meets or equals a listed impairment; (4) is able to perform his or her past relevant work; and (5) is able to perform work existing in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f). We now focus our attention on step two, the point at which the ALJ denied McCrea’s application"
},
{
"docid": "5492933",
"title": "",
"text": "inability to work because of upper and lower back injuries. Batson’s claim was denied both initially and upon reconsideration. On Batson’s further request, a hearing was then held before an ALJ on October 4, 1999. On October 22, 1999, the ALJ issued a written decision finding Batson ineligible for disability insurance benefits. The Social Security Administration’s Appeals Council denied Batson’s request for review, and Batson appealed to the United States District Court for the District of Oregon, which by an opinion and order dated April 2, 2002 affirmed the ALJ’s determination that Batson was not eligible to receive disability insurance benefits. On Batson’s appeal, we review de novo the district court’s order upholding a decision of the Commissioner denying benefits to an applicant. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir.2003). The Commissioner’s decision must be affirmed by us if supported by substantial evidence, and if the Commissioner applied the correct legal standards. Id. Under this standard, the Commissioner’s findings are upheld if supported by inferences reasonably drawn from the record, see Gallant v. Heckler, 753 F.2d 1450, 1452-53 (9th Cir.1984), and if evidence exists to support more than one rational interpretation, we must defer to the Commissioner’s decision, see Morgan v. Commissioner, 169 F.3d 595, 599 (9th Cir.1999). To establish whether he qualifies for benefits, Batson has the burden of proving an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impair ment which ... has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security regulations set forth a five-step sequential evaluation process for determining whether a claimant has met this standard. See 20 C.F.R. § 404.1520. First, the ALJ must determine whether the claimant is engaged in substantial gainful activity. See 20 C.F.R. § 404.1520(b). If not, the ALJ then must determine whether the claimant’s impairments are “severe” within the meaning of the regulations. See 20 C.F.R. § 404.1520(c). If the impairments are “severe,” then the ALJ must compare the claimant’s impairments to the"
},
{
"docid": "22345127",
"title": "",
"text": "a number of medical injuries to the left knee and back. On November 3, 1995, the Appeals Council for the Social Security Administration considered Dr. Pace’s report but denied Balsamo’s request for a review of the ALJ’s decision. Balsamo sought judicial review, pursuant to 42 U.S.C. § 405(g), and on October 25,1996 the district court entered judgment, pursuant to Fed. R.Civ.P. 12(c), affirming the ALJ’s decision and holding that it was supported by substantial evidence. This appeal followed. Discussion I. The Statutory Scheme We set aside the ALJ’s decision only where it is based upon legal error or is not supported by substantial evidence. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam). To be eligible for disability benefits under 42 U.S.C. § 423, Balsamo must establish his “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than twelve months” and the impairment must be of “such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(1)(A), 423(d)(2)(A). We restate the familiar five-step procedure set out in the Commissioner’s regulations for evaluating disability claims under this section. See Diaz v. Shalala, 59 F.3d 307, 311 n. 2 (2d Cir.1995); Berry, 675 F.2d at 467; 20 C.F.R. §§ 404.1520, 416.920 (1997). First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where (as is undisputedly the case here) the claimant is not so engaged, the Commissioner next considers whether the claimant has a “severe impairment” that significantly limits his physical or mental ability to do basic work activities. The ALJ found and it is undisputed that Balsamo had “severe low back pain syndrome and internal derangement of the left knee,” which qualifies as a severe impairment. Where the claimant does suffer a severe impairment, the third inquiry is"
},
{
"docid": "22052147",
"title": "",
"text": "disability insurance benefits was denied both initially and upon reconsideration. After conducting a hearing, on January 27, 1999, the ALJ rendered a decision concluding that Jones was not entitled to benefits. On October 2, 2001, the Appeals Council denied Jones’s request to review the ALJ’s decision. Subsequently, Jones sought judicial review of the adverse decision, pursuant to 42 U.S.C. § 405(g), in the United States District Court for the Western District of Pennsylvania. On January 6, 2003, the Honorable Alan N. Bloch granted the Commissioner’s motion for summary judgment and denied Jones’s cross-motion for summary judgment. This appeal followed. II. The District Court exercised jurisdiction pursuant to 42 U.S.C. § 405(g), and appellate jurisdiction is vested in this Court under 28 U.S.C. § 1291. The role of this Court is identical to that of the District Court; we must determine whether there is substantial evidence to support the Commissioner’s decision. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999). Substantial evidence means “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Jesurum v. Sec’y of the U.S. Dep’t of Health & Human Servs., 48 F.3d 114, 117 (3d Cir.1995) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). “It is less than a preponderance of the evidence but more than a mere scintilla.” Id. Overall, the substantial evidence standard is a deferential standard of review. Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir.1999). The Social Security Administration has promulgated a five-step evaluation process to determine whether an individual is disabled. See 20 C.F.R. § 404.1520; see generally Plummer, 186 F.3d at 428. In step one, the Commissioner decides whether the claimant is currently engaging in substantial gainful activity. If so, the claimant is not eligible for disability benefits. 20 C.F.R. § 404.1520(a). In step two, the Commissioner determines whether the claimant is suffering from a severe impairment. If the impairment is not “severe,” the claimant is not eligible for disability benefits. 20 C.F.R. § 404.1520(c). In step three, the Commissioner evaluates"
},
{
"docid": "22052146",
"title": "",
"text": "CHERTOFF, Circuit Judge. Tie'Ease L. Jones appeals from the District Court’s judgment affirming the Commissioner of Social Security’s denial of her application for disability insurance and supplemental security income benefits. Jones challenges the ALJ’s determination at steps three and five of the five-step evaluation process promulgated by the Social Security Administration to determine whether an individual is disabled. See 20 C.F.R. § 404.1520. At step three, the ALJ concluded that Jones’s signs, symptoms, and laboratory findings did not meet or equal the criteria established for a listed impairment. At step five, the ALJ concluded the Commissioner had met its burden of establishing Jones’s capacity for other work, given her impairments, pain, functional restrictions, age, education, and work experience. For the reasons stated below, we will affirm the District Court’s judgment. I. Jones was born on September 3, 1969. She has an eleventh grade education and past work experience as a nursing assistant and telemarketer. Jones filed for disability benefits on or about September 17, 1997, alleging disability due to asthma and hives. Jones’s application for disability insurance benefits was denied both initially and upon reconsideration. After conducting a hearing, on January 27, 1999, the ALJ rendered a decision concluding that Jones was not entitled to benefits. On October 2, 2001, the Appeals Council denied Jones’s request to review the ALJ’s decision. Subsequently, Jones sought judicial review of the adverse decision, pursuant to 42 U.S.C. § 405(g), in the United States District Court for the Western District of Pennsylvania. On January 6, 2003, the Honorable Alan N. Bloch granted the Commissioner’s motion for summary judgment and denied Jones’s cross-motion for summary judgment. This appeal followed. II. The District Court exercised jurisdiction pursuant to 42 U.S.C. § 405(g), and appellate jurisdiction is vested in this Court under 28 U.S.C. § 1291. The role of this Court is identical to that of the District Court; we must determine whether there is substantial evidence to support the Commissioner’s decision. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999). Substantial evidence means “ ‘such relevant evidence as a reasonable mind might accept as adequate to"
},
{
"docid": "22406828",
"title": "",
"text": "of Pratts’s records from the VA. Unfortunately, the hearing tape was mistakenly turned off for a portion of Dr. Bonilla’s testimony, leaving a significant gap in the administrative record. The Secretary of Health & Human Services has promulgated a five-step procedure for evaluating disability claims. 20 C.F.R. § 404.1520 (1995). In this case, the ALJ found that Pratts (1) was not currently working; (2) had a severe impairment that significantly limited his ability to perform work; (3) was not presumptively disabled because his condition did not meet or equal the impairments listed in the regulations; and (4) could not perform his past work. The present dispute concerns the fifth determination — whether there is other work that Pratts could do. The ALJ found that the Commissioner had demonstrated that Pratts retained his exertional capacity for light work. After evaluating all the evidence, the ALJ concluded that Pratts was not under a disability as defined in the Social Security Act, 42 U.S.C. § 423(d) (1994), on or before December 31, 1990. The ALJ based her conclusion on several factors, including Pratts’s medical records and the testimony of the Commissioner’s medical expert. The ALJ issued her decision denying Pratts disability benefits in March 1994. The ALJ’s decision became the final decision of the Commissioner when the Appeals Council denied Pratts’s pro se request for review on May 17,1994. Pratts sought review of the Commissioner’s decision in federal court pursuant to 42 U.S.C. § 405(g) (1994). The parties cross-moved for judgment on the pleadings, and the district court, after a brief hearing, granted the Commissioner’s motion on the ground that substantial evidence supported the findings of the ALJ. This appeal followed. DISCUSSION The standard for our review of Pratts’s appeal has been made clear in numerous prior decisions of this court. When considering an appeal of a disability case, “we undertake our own plenary review of the administrative record to determine whether substantial evidence supports the [Commissioner's denial of benefits.” Havas v. Bowen, 804 F.2d 783, 785 (2d Cir.1986); see also Vargas v. Sullivan, 898 F.2d 293, 296 (2d Cir.1990); Parker v. Harris,"
},
{
"docid": "23424503",
"title": "",
"text": "that McFarley’s report did not justify a review of the ALJ’s decision on the merits, much less a reversal of the ALJ’s decision. The ALJ’s decision thus became the Commissioner’s final and official decision when the Appeals Council denied Masterson’s request for review on the merits. Masterson sought judicial review of the ALJ’s decision in the district court on February 15, 2000. II. A. A claimant bears the burden of proving that he suffers from a disability, which the Social Security Act defines as a medically determinable physical or mental impairment lasting at least twelve months that prevents the claimant from engaging in substantial gainful activity. 42 U.S.C. § 423(d)(1)(A); Newton, 209 F.3d at 452. The Commissioner follows a five-step sequence to evaluate claims of disability: whether (1) the claimant is currently engaged in substantial gainful activity, (2) he has a severe impairment, (3) the impairment meets or equals the severity of a listed impairment in Appendix 1 of the regulations, (4) the impairment prevents the claimant from performing past relevant work, and (5) the impairment prevents him from doing any other work. 20 C.F.R. § 404.1520; Newton v. Apfel, 209 F.3d 448, 453 (5th Cir.2000). If the claimant satisfies the first four steps with sufficient proof, the burden of proof shifts to the Commissioner to show that the claimant can perform other substantial work in the national economy. Newton, 209 F.3d at 453; Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir.1987). The burden of proof then returns to the claimant to rebut the Commissioner’s showing. Chaparro, 815 F.2d at 1010. A finding that the claimant is not disabled at any step is conclusive and ends the inquiry. Greenspan v. Shalala, 38 F.3d 232, 235 (5th Cir.1994). B. We review the denial of benefits only to ascertain whether substantial evidence supports the final decision and whether the Commissioner used the proper legal standards to evaluate the evidence. See 42 U.S.C. § 405(g); Newton, 209 F.3d at 452; Brown v. Apfel, 192 F.3d 492, 496 (5th Cir.1999). We affirm the Commissioner’s findings whenever supported by substantial evidence. Martinez v. Chater,"
},
{
"docid": "19773980",
"title": "",
"text": "ARNOLD, Circuit Judge. Shirl Roberson, who suffers from bipolar disorder, applied for social security disability insurance benefits and supplemental security income. After the Social Security Administration (SSA) denied her benefits initially, she received a hearing before an administrative law judge (ALJ), who concluded that she was not disabled and denied her claim. The Appeals Council denied review, and so the ALJ’s decision became the final decision of the SSA. Ms. Roberson sought relief in district court, which upheld the ALJ’s decision, and Ms. Roberson appealed, contending that the administrative decision is not supported by substantial evidence. We affirm. We review the district court’s decision de novo. See Pettit v. Apfel, 218 F.3d 901, 902 (8th Cir.2000). Like the district court, we review the decision of the ALJ for substantial evidence and adherence to the relevant legal requirements. Id.; see also 42 U.S.C. § 405(g). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation and internal quotation marks omitted). Wfiien deciding whether the ALJ’s findings are supported by substantial evidence, we consider evidence in support of and contrary to those findings. Pettit, 218 F.3d at 902. The SSA uses a five-step process to determine whether a social security claimant is disabled. See 20 C.F.R. § 404.1520. Here the ALJ first determined that Ms. Roberson was not engaged in substantial gainful activity, and decided at the next step that her bipolar disorder was a severe impairment, i.e., one that “significantly limit[ed][her] physical or mental ability to do basic work activities,” see 20 C.F.R. § 404.1520(c). At the third step, the ALJ concluded that Ms. Roberson did not meet the criteria for any of the listed impairments that are acknowledged to be so severe as to result in a conclusive presumption of disability. See 20 C.F.R. § 404.1520(d). Ms. Roberson’s claim was denied at step four; the ALJ concluded that she was capable of performing her past relevant work as a computer programmer and was therefore not disabled. -"
},
{
"docid": "22406776",
"title": "",
"text": "denying Sykes’s benefits pursuant to 42 U.S.C. § 405(g). We have jurisdiction over this appeal from the final decision of the District Court pursuant to 28 U.S.C. § 1291. We review the factual findings of the Commissioner only to determine whether the administrative record contains substantial evidence supporting the findings. See 42 U.S.C. § 405(g); Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir.1986) (even if the record could sustain an alternative conclusion, the ALJ’s decision regarding disability will not be overturned as long as there is substantial evidence to support it). Our review of legal issues is plenary. See Schaudeck v. Commissioner of Social Sec. Admin., 181 F.3d 429, 431 (3d Cir.1999). II. In addition to other requirements not at issue .here, a claimant is entitled to total disability benefits under the Social Security Act “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). The Act contemplates that disability determinations will be individualized and be based on evidence adduced at a hearing. See Heckler v. Campbell, 461 U.S. 458, 467, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983) (noting that the Act requires individualized determination based on evidence adduced at a hearing); see also 42 U.S.C. § 405(b) (requiring consideration of each individual’s condition and stating that an individual may request that a disability determination be based on evidence adduced at a hearing). The Act also gives the Social Security Administration authority to develop regulations implementing these provisions. See Campbell, 461 U.S. at 466, 103 S.Ct. 1952. The Social Security Administration has promulgated a five-step process for evaluating disability claims. See 20 C.F.R. § 404.1520 (1999). First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. If he is not, then the Commissioner considers in the second step whether the claimant has a “severe impairment” that significantly limits his physical or mental ability"
},
{
"docid": "22076605",
"title": "",
"text": "of the ALJ’s decision as a whole, would lead to unwarranted remands needlessly prolonging administrative proceedings. I. Claimant Sharee Fischer-Ross suffers from carpal tunnel syndrome (a nerve disorder of the hands), lumbar spondylosis (a degenerative spine disorder), and allergic rhinitis (hay fever). Claimant filed this action in the district court seeking judicial review of Defendant Commissioner’s denial of her request for disability benefits. See 42 U.S.C. § 405(g). In a thorough order, the district court reviewed each step of the ALJ’s five-step analysis, reversed on the basis of insufficient findings at step three, and remanded for further proceedings. Commissioner appeals. We exercise jurisdiction under 28 U.S.C. § 1291. See 42 U.S.C. § 405(g) (“The judgment of the [district] court shall be subject to review in the same manner as a judgment in other civil actions.”); Sullivan v. Finkel-stein, 496 U.S. 617, 623-31, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990) (construing § 405(g)). We review the district court’s decision de novo and independently determine whether the ALJ’s decision is free from legal error and supported by substantial evidence. Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001). A. The SSA defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months....” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration employs an oft-repeated five-part sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137,140-42, 107 S.Ct. 2287; 96 L.Ed.2d 119 (1987); Williams v. Bowen, 844 F.2d 748, 750-53 (10th Cir.1988). Step one requires a claimant to establish she is not engaged in “substantial gainful activity.” See 20 C.F.R. §§ 404.1520(b), 404.1572. Step two requires the claimant to establish she has a “medically severe impairment or combination of impairments.” See id. §§ 404.1520(c), 404.1520a-404.1523. Step three asks whether any “medically severe impairment,” alone or in combination with other impairments,"
},
{
"docid": "22276678",
"title": "",
"text": "of Review When deciding an appeal from a denial of disability benefits, we focus on the administrative ruling rather than the district court’s opinion. Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir.1998). Although “we undertake our own plenary review of the administrative record,” “in examining the ALJ’s decision, [i]t is not our function to determine de novo whether [Curry] is disabled.” Id. at 501 (internal quotation marks omitted). “Rather, we must determine whether the Commissioner’s conclusions ‘are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard.’ ” Id. (quoting Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir.1997) (internal quotation marks and citation omitted)); see 42 U.S.C. § 405(g). “Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Id. (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal quotation marks and citation omitted)). B. The Merits of Curry’s Disability Claim The Social Security Act defines “disability” in relevant part as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration (“SSA”) has promulgated a five-step procedure for evaluating disability claims. See 20 C.F.R. § 404.1520. We have interpreted that procedure as follows: First, the [Commissioner] • considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a “severe impairment” [that] significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment ... listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational"
}
] |
528372 | “in violation of the agreement”. The trial court said of this — “this is a conclusion of the pleader * * * the court is not bound by such a conclusion.” Under the notice system of pleading established by the Rules of Civil Procedure, 28 U.S.C.A. the ancient distinction between pleading “facts” and “conclusions” is no longer significant. The question is simply whether, in the words of Rule 8(a) there is “a short and plain statement of the claim”. This statement in the present complaint is short, but it is certainly not plain, absent some showing of the terms of the contract. Sheridan-Wyoming Coal Co. v. Krug, 83 U.S.App.D.C. 162, 168 F.2d 557, 558-59; REDACTED Clearly the complaint was inadequate even under the Rules, liberal as they are. This brings us to the question as to what disposition we should make of the case, now that we have held that a motion to dismiss was proper. We must note here that the views which we have expressed give the case a somewhat different aspect than it had under the trial court’s ruling. Under the court’s ruling that the complaint showed that the action was solely to enforce the uniquely personal rights of the employee and hence not within Sec. 301 of the Act because of the decision in the Westinghouse case, supra, it must have concluded that the plaintiff could “prove no set of facts in support | [
{
"docid": "23448566",
"title": "",
"text": "complaint was good against the motion to dismiss. In order to state a cause of action it was necessary, of course, for the appellant to allege facts showing a breach of the agreement by the employer in discharging her. The complaint is wholly lacking in that respect. Its only averment of fact concerning the discharge is that it occurred “without any prior notice by the defendants”. The appellant did not allege facts showing either (a) that the employers’ reason for releasing her, which she could have learned if she did not know what it was, was not “good and sufficient”, or (b) that she was entitled to notice prior to discharge, which the contract does not require in all cases. Moreover, although the appellant pleaded the terms of the contract which require the employer, in some instances, to grant severance pay, she did not plead she was entitled to it or that she had not received it. The allegation in the complaint that the appellant was discharged “without any prior notice by the defendants” is followed by this statement: “ * * * The discharge of the plaintiff was wrongful, without good and sufficient cause or justification, and in violation of the provisions of the aforesaid agreement.” This was nothing more than a conclusion of the pleader, since it was not supported by a statement of facts constituting the alleged breach of the contract. Sheridan-Wyoming Coal Co. v. Krug, 1948, 83 U.S. App.D.C. 162, 163, 164, 168 F.2d 557, 558, 559. It thus appears that the complaint should have been dismissed for failure to state a cause of action, and not for the reasons assigned by the District Court. Ordinarily a correct decision of a trial court should be affirmed, even though based on an incorrect ground. The ends of justice would be better served in this case, we think, by remanding it so that appellant may be afforded an opportunity to amend her complaint.' If she does not do so, the motion to dismiss should again be granted. Reversed and remanded. . The newspaper was owned by Mrs. Eleanor"
}
] | [
{
"docid": "3064220",
"title": "",
"text": "the facts a glance would suffice to demonstrate the insufficiency of the complaint. That is not, however, the function of pleading under the Federal Rules of Civil Procedure. As the Supreme Court said in Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 388, 91 L.Ed. 451, “The new rules, however, restrict the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role in the preparation for trial.” Nevertheless Rule 8(a) requires that a complaint shall contain “a short and plain statement of the claim showing that the pleader is entitled to relief” and subsequent rules speak of the defense of “failure to state a claim upon which relief can be granted”. Rules 12(b), 12(h). Even after a score of years of experience it is still doubtful just how much a complaint must state to avoid dismissal. The forms of complaint contained in the appendix to the Rules pursuant to Rule 84 are, in general, the forms which would have been used under the old system of pleading in the absence of the old rule against pleading conclusions. Nothing essential to the plaintiff’s recovery is omitted except details. The litigants have, however, failed to follow these good examples and have been upheld by the courts in their failure. The principle is now expressed by many courts by the statement that a complaint will not be ■dismissed for failure to state a claim on which relief can be granted “unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.” 2 Moore’s Federal Practice, 2nd Ed. § 12.08, p. 2245. This would seem to mean that all a plaintiff need state is what he wants from the court, but the Advisory Committee on the Rules seems to cling to the words of Rule 8(a) that the pleader must show that he is entitled to relief. In the Advisory Committee’s Report of Proposed Amendments, October 1955, pp. 18-19, and Preliminary Draft, May 1954, pp. 8, 9, as a note"
},
{
"docid": "19279069",
"title": "",
"text": "(Mendez, J.) (E.D.Cal. Apr. 3, 2013) (“The Court declines to reach the issue of whether to apply the heightened pleading standard in ruling on Plaintiff’s Motion to Strike Defendants’ Affirmative Defenses because it is not necessary to resolve the pending Motion”). Given the diversity of views on the issue and the absence of any binding authority, the court finds that it must make its own determination on the question. The court begins by noting that, in its view, neither Twombly nor Iqbal appears to adhere to the plain language of the Federal Rules of Civil Procedure. But as the court is bound to follow Supreme Court precedent, the issue, then, is whether the reasoning of Twombly and Iqbal extends to the pleading of affirmative defenses. As set forth in Iqbal: Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” As the Court held in Twombly, the pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 677-78, 129 S.Ct. 1937 (internal citations omitted). Here, the Supreme Court relies on Rule 8(a)(2). Rule 8(b)(1)(A), which provides, “In responding to a pleading, a party must state in short and plain terms its defenses to each claim asserted against it,” is similarly worded. Some courts have drawn a distinction between Rule 8(a)’s requirement that the statement of the claim “show[ ] that the pleader is entitled to relief,” and the absence of an equivalent phrase in Rules 8(b)(1) and 8(e). See, e.g., Kohler v. Staples the Office Superstore, LLC, — F.R.D. - at n. 6, 2013"
},
{
"docid": "23361138",
"title": "",
"text": "forty percent of the boards were not disinterested, the advisory agreements could not have been properly approved as required by Section 15(c). Therefore, the defendant investment advisers breached their fiduciary duty under Section 36(b) by failing to negotiate their advisory agreements at arm’s-length. On March 20, 2000, the district court granted defendants’ Rule 12(b)(6) motion with prejudice. The court held that plaintiffs had failed to plead sufficient facts to show that the compensation the investment advisers received was excessive. The court stated that the complaint’s “level of generality remains too high,” because the plaintiffs’ allegations “do not remotely touch on the issue of what, if any, relation exists between the disputed fees on the one hand, and the services provided in consideration for their payment, on the other hand.” The court also held that plaintiffs had failed to allege sufficient facts to show that the funds’ directors were not “disinterested,” and hence in violation of the ICA. Plaintiffs now appeal. II. A. A Rule 12(b)(6) motion should only be granted if, after accepting all well-pleaded allegations in the plaintiffs complaint as true, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief. See Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999). Furthermore, the “Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Rather, Rule 8(a)(2) requires only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2). Rule 12(b)(6), however, is not without meaning. “The presence [ ] of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint” cannot support the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir.2001). And “[although the pleading requirements of Rule 8(a) are very liberal, more detail often is required than the bald statement by"
},
{
"docid": "10081840",
"title": "",
"text": "all other cases, courts faced with the task of adjudicating motions to dismiss under Rule 12(b)(6) must apply the notice pleading requirements of Rule 8(a)(2).” Id. Since there is no federal statute or specific Federal Rule of Civil Procedure mandating a heightened pleading standard for civil rights actions such as the political discrimination claims at issue in this appeal, the notice pleading standard, not the heightened pleading standard formerly applied in this circuit, governs motions to dismiss. The case before us appears at first glance to present precisely the same situation that we resolved in Hernández. As in Hernández, the district court in this case dismissed plaintiffs’ political discrimination claims on the basis that plaintiffs failed to establish a prima facie case. Compare Rivera, 301 F.Supp.2d at 108, with Hernández, 367 F.3d at 63. On this basis, in Hernández, we remanded the case to the district court to proceed in light of the proper standard. 367 F.3d at 68. Appellants ask that we follow suit in the instant case. Notwithstanding the citations to the “prima facie case” standard, it does not, however, appear that the district court in this case applied a heightened pleading standard. Rather, it looked to the complaint and found that the allegations therein failed to make out a claim against these defendants. Furthermore, we find that remand would be unnecessary, because appellants’ claims in question clearly fail to survive the proper Rule 8(a)(2) notice pleading standard. Under Rule 8(a)(2), a complaint need only include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 66. “This statement must ‘give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.’ ” Id. (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Under this standard, “a court confronted with a Rule 12(b)(6) motion ‘may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’ ” Id. (quoting Hishon v. King"
},
{
"docid": "21565572",
"title": "",
"text": "of plaintiff’s claims. Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of a modern complaint is “to give opposing parties fair notice of the basis of the claim against them so that they may respond to the complaint, and to apprise the court of sufficient allegations to allow it to conclude, if the allegations are proved, that the claimant has a legal right to relief.” Perington Wholesale, 631 F.2d at 1371. To dismiss under Rule 12(b)(6), “The trial court must conclude ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Id. at 1372 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). With the above standards in mind, we address in turn the sufficiency of the counts charged in the complaint. A. Conspiracy to Restrain Trade In Count I, Monument Builders charges defendant cemeteries and cemetery associations with a horizontal conspiracy to restrain trade in violation of section 1 of the Sherman Act. We must determine whether the complaint makes sufficient allegations of conspiracy, and whether it alleges illegal practices under section 1. “The pleading standard set by Rule 8(a)(2) does not change from case to case.... However, while the pleading standard does not vary, what constitutes sufficient notice to enable a defendant to formulate a responsive pleading does change from case to case. To provide adequate notice, a complaint in a complex, multi-party suit may require more information than a simple, single party case.” Mountain View Pharmacy v. Abbott Laboratories, 630 F.2d 1383, 1386-87 (10th Cir.1980). In Mountain View, which defendants cite heavily, we dismissed portions of a multi-party antitrust conspiracy complaint as inadequate. The differences between the Mountain View complaint and that filed by Monument Builders are striking. The plaintiffs in Mountain View sued a large number of drug companies for unfair trade practices in relation to certain products. In none of their claims did the"
},
{
"docid": "14158544",
"title": "",
"text": "An award of that, character may be the necessary end result of an action under Sec. 301(a) to-vindicate the Union’s rights under a collective bargaining agreement. Such is-the teaching of the decisions of this court in Local 19, Warehouse, Etc. v. Buckeye-Cotton Oil Co., 6 Cir., 236 F.2d 776, 779,. 781, and in the Kornman case, supra. We think that the result reached by the court was a correct one for the reason that it cannot be ascertained from the allegations of the complaint whether the questions submitted to arbitration were or were not within the limitations stated in Westinghouse. The terms of the collective bargaining agreement out of which the asserted grievances arose are not stated in the complaint. There is no allegation to show what were the obligations of the employer from which a grievance relating to this employee might arise. We are not informed as to whether the agreement contemplated authority in an arbitrator to order reinstatement of a discharged employee. It is true that the complaint alleges that Overall was dismissed “in violation of the agreement”. The trial court said of this — “this is a conclusion of the pleader * * * the court is not bound by such a conclusion.” Under the notice system of pleading established by the Rules of Civil Procedure, 28 U.S.C.A. the ancient distinction between pleading “facts” and “conclusions” is no longer significant. The question is simply whether, in the words of Rule 8(a) there is “a short and plain statement of the claim”. This statement in the present complaint is short, but it is certainly not plain, absent some showing of the terms of the contract. Sheridan-Wyoming Coal Co. v. Krug, 83 U.S.App.D.C. 162, 168 F.2d 557, 558-59; Marranzano v. Riggs Nat. Bank of Washington, 87 U.S.App.D.C. 195, 184 F.2d 349, 351. Clearly the complaint was inadequate even under the Rules, liberal as they are. This brings us to the question as to what disposition we should make of the case, now that we have held that a motion to dismiss was proper. We must note here that the"
},
{
"docid": "16500288",
"title": "",
"text": "Fourteenth Amendment to the Constitution of the United States. In the interest of construing the Complaint liberally, the Court will assume that plain tiffs mean to plead due process violations and a violation of the Patent Clause. III. APPLICABLE LAW A. Standard of Review “Federal Rule of Civil Procedure 8(a)(2) requires ... ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ ” When deciding a defendant’s motion to dismiss under Rule 12(b)(6), courts must “accept as true all of the factual allegations contained in the complaint” and “draw all reasonable inferences in plaintiffs favor.” Likewise, when deciding a motion for judgment on the pleadings, a court “must accept all allegations in the complaint as true and draw all inferences in the non-moving party’s favor.” Nevertheless, to survive a Rule 12(b)(6) motion to dismiss, the allegations in the complaint must meet the standard of “plausibility.” Although the complaint need not provide “detailed factual allegations,” it must “amplify a claim with some factual allegations ... to render the claim plausible” The test is no longer whether there is “ ‘no set of facts [that plaintiff could prove] which would entitle him to relief.’ ” Rather, the complaint must provide “the grounds upon which [the plaintiffs] claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.’ ” Although this Court must take the plaintiffs allegations as true, “the claim may still fail as a matter of law ... if the claim is not legally feasible.” In addition, “bald assertions and conclusions of law will not suffice.” Courts must construe pro se complaints liberally. However, a litigant’s pro se status does not exempt him from compliance with the relevant rules of procedural and substantive law. B. Rule 8(a) “[T]he principal function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial.” “The statement should be short because ‘Unnecessary prolixity in a pleading places an unjustified burden on the court and the party"
},
{
"docid": "22370366",
"title": "",
"text": "of action does not exist, rather than that a cause of action has been defectively stated. * * * “That rule of procedure should be followed which will be most likely to result in justice between the parties, ánd, generally speaking, that result is more likely tó be attained by leaving the merits of the cause to be disposed of after answer and the submission of proof, than by attempting to deal with the merits on motion to dismiss the bill.” In Donnelly Garment Co. v. International Ladies’ Garment Workers’ Union, 8 Cir., 99 F.2d 309, 312, this Court said: “As is usual in the case of demurrers and motions to dismiss pleadings, the parties are not in accord as to what facts are ‘well pleaded’. We think it would serve no useful purpose to attempt to sift the complaints, which cover some 40 pages of the record, in an endeavor to separate facts, evidentiary and ultimate, .from the mere conclusions of the pleaders. We are of the opinion that if, in view of what is alleged, it can reasonably be conceived that the plaintiffs and the interveners could, upon a trial, establish a case which would entitle them to injunctive relief, the motion to dismiss should not have been granted.” See, also, Thompson v. Terminal Shares, Inc., 8 Cir., 89 F.2d 652, 657; Ansehl v. Puritan Pharmaceutical Co., 8 Cir., 61 F.2d 131, 133; State of Kansas v. Colorado, 185 U.S. 125, 145, 22 S.Ct. 552, 46 L.Ed. 838. The Rules of Civil Procedure, which are here applicable, require that a complaint shall contain (in addition to the necessary jurisdictional averments) “a short and plain statement of the claim showing that the pleader is entitled to relief”, and “a demand for judgment for the relief to which he deems himself entitled”. Rule 8(a) (2) and (3), 28 U.S.C.A. following section 723c. The appendix of forms accompanying the rules illustrates how simply and informally a claim may be pleaded and how few factual averments are required for initiating a suit. Rule 12(b) (6) authorizes a motion to dismiss a complaint"
},
{
"docid": "14158546",
"title": "",
"text": "views which we have expressed give the case a somewhat different aspect than it had under the trial court’s ruling. Under the court’s ruling that the complaint showed that the action was solely to enforce the uniquely personal rights of the employee and hence not within Sec. 301 of the Act because of the decision in the Westinghouse case, supra, it must have concluded that the plaintiff could “prove no set of facts in support of his claim which would entitle him to relief.” However, our treatment of this case discloses that it is impossible to say from the facts here present whether the action would or would not be barred for the reasons stated in the Westinghouse case. By the same token it would appear that it might be possible under the authorities previously cited here to state or prove a claim maintainable under Sec. 301(a). For this reason we feel constrained to make the same disposition of this case as was done by the Court of Appeals in the District of Columbia in Marranzano v. Riggs Nat. Bank of Washington, supra. There the court, after noting that the complaint should have been dismissed for failure to state a claim, said: “The ends of justice would be better served in this case, we think, by remanding it so that appellant may be afforded an opportunity to amend her complaint.” [184 F.2d 351.] The proposition that a case heard in the federal courts should be determined upon the merits and after an adequate development of the facts is an established principle of this court. In Sherman v. Air Reduction Sales Company, 6 Cir., 251 F.2d 543, 546, Judge Stewart speaking for the court, said: “After a trial on the merits it may turn out that the appellee is correct that the appellant cannot prevail, but that determination cannot be made now. As Mr. Justice Brandeis wrote, ‘Lawsuits also often prove to have been groundless; but no way has been discovered' of relieving a defendant from the necessity of a trial to establish the fact.’ ” This is the same principle"
},
{
"docid": "5557699",
"title": "",
"text": "relations as being primarily subject to control and regulation under the National Labor Relations Act. In each instance, legislation was seen as necessary to curb abuses with which prior legislation had inadequately dealt. At the same time, Congress repeatedly reaffirmed its position that union con duct was not a proper subject for regulation under the antitrust laws, but was to be controlled within the structure which had been created by the labor acts. In summary, nothing in the legislative history of either of these Acts indicates either a congressional intent to narrow the scope of that antitrust immunity previously accorded to all unions under the Clayton, Norris-LaGuardia and National Labor Relations Act or to provide to agricultural workers a separate and distinct immunity. II SUFFICIENCY OF THE AMENDED COMPLAINT We now turn to the sufficiency of the plaintiffs’ amended complaint, which must be judged under the standards established by Rule 8(a) of the Federal Rules of Civil Procedure. This Rule requires “(1) a short and plain statement of the grounds upon which the court’s jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which he deems himself entitled.” The complaint before us clearly satisfies the requirements of Rule 8(a)(1) and (3); our problem is with 8(a) (2). A. Rule 8(a)(2). It is clear that the intent of Rule 8(a)(2) is to require that the pleader’s “short plain statement” give to the “defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). In determining whether a pleading meets this standard, it must be “construed as to do substantial justice.” Rule 8(f), Federal Rules of Civil Procedure. These are not demanding standards. The Supreme Court has stated that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of"
},
{
"docid": "6240440",
"title": "",
"text": "claim.” Fed.R. Civ.P. rule 8(a)(2). If by “claim” is meant merely the assertion of a demand for relief the plaintiff might be correct, but not even the most advanced advocates of simplified pleadings have gone that far. Under the language of the Rules the claim must show “that the pleader is entitled to relief.” A claim may not therefore consist merely of a demand for relief or conclusory allegations of wrongdoing but it must contain a statement of such circumstances or facts as would lead to the legal conclusion that the plaintiff is “entitled” to that relief. This means that on the basis of the factual allegations of the complaint and the most favorable inferences to be made therefrom the Court must be able to see that a legal claim exists on which a remedy-may be had. Most courts have followed this view of a complaint on motions to dismiss without much discussion. If important elements of fact were missing from the allegations of the complaint, and the most favorable inferences to be made therefrom, they have dismissed the complaint or required that the plaintiff plead again. See, e. g., Subin v. Goldsmith, 2 Cir., 1955, 224 F.2d 753; Citrin v. Greater New York Industries, D.C.S.D.N.Y.1948, 79 F.Supp. 692; Schaefer v. Macri, 9 Cir., 1952, 196 F.2d 162; Patten v. Dennis, 9 Cir., 1943, 134 F.2d 137; Patrick v. Beasley, D.C.S.D.N.Y.1953, 15 F.R.D. 204. Other courts have been far more explicit in requiring that sufficient ultimate facts be alleged, however briefly and conclusorily, from which the court may see that a claim for relief exists. Foley-Carter Ins. Co. v. Commonwealth Life Ins. Co., 5 Cir., 1942, 128 F.2d 718; Dyer v. Gallagher, 6 Cir., 1953, 203 F.2d 477; Sheridan-Wyoming Coal Co. v. Krug, 1948, 83 U.S.App.D.C. 162, 168 F.2d 557; Voliva v. Bennett, 5 Cir., 1953, 201 F.2d 434; Eli E. Albert, Inc., v. Dun & Bradstreet, Inc., D.C.S.D.N.Y.1950, 91 F.Supp. 283; Daves v. Hawaiian Dredging Co., D.C.D.Hawaii 1953, 114 F.Supp. 643; Fleming v. Dierks Lumber & Coal Co., D.C.W.D.Ark.1941, 39 F.Supp. 237; McJunkin v. Richfield Oil Corp., D.C.N.D.Cal.1940, 33"
},
{
"docid": "7688630",
"title": "",
"text": "the time period between August 3, 2004, and September 2, 2004. We are thus satisfied that the judgment of the district court dismissing the complaint has now become a final one, and that the appeal can proceed. We add, however, that these procedural shortcuts are undesirable, both because they can lead to wasteful premature efforts to appeal and because they leave all parties concerned unsure about the status of their rights. Moreover, we expressly decline to rely on the plaintiffs’ alternate theory to support appellate jurisdiction, which is that there was no amendment that they could offer that would save the complaint. Our reasons for doing so will become clear in the remainder of this opinion. The central issue here is whether the McDonalds’ complaint failed to state a claim upon which relief could be granted, as the district court concluded. Before addressing that, we must review the standards for evaluating a motion under Rule 12(b)(6). That rule does not stand in isolation from the remainder of the Federal Rules of Civil Procedure. Instead, it must be read in conjunction with the other rules governing pleadings, principally Rule 8(a). Rule 8(a) requires only “(1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks.” This is a notice pleading standard, not a fact pleading standard, as the Appendix of Forms following the Civil Rules illustrates. This court has repeatedly held that pleaders in a notice system do not have any obligation to plead legal theories. See, e.g., Williams v. Seniff, 342 F.3d 774, 792 (7th Cir.2003); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir.2000); La Porte County Republican Cent. Comm. v. Bd. of Comm’rs of County of La Porte, 43 F.3d 1126, 1129 (7th Cir.1994). In a case very much like this one, where an employee sued his employer for an alleged wrongful failure to pay certain severance and pension benefits under a contract, the"
},
{
"docid": "23364062",
"title": "",
"text": "MURRAH, Circuit Judge. Edward W. Clyde for himself and in behalf of twenty-two others similarly situated brought this action against his employer, Broderick and Gordon, to recover overtime compensation, liquidated damages and attorney’s fee granted by Section 16(b) of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq. The trial court sustained a motion to dismiss the action on the grounds that it appeared from the complaint that the employees were not “engaged in commerce or in the production of goods for commerce,” within the purview of the Fair Labor Standards Act, and the employees have appealed. The sole question presented for decision is whether the facts as pleaded in the complaint warrant the legal conclusion that the appellants were not “engaged in commerce or in the production of goods for commerce” as those words of coverage are used in the Fair Labor Standards Act. In that connection it should be observed that the pleader is not required to do more than make a “short and plain statement” of the facts upon which he relies to establish his claim. Rule 8(a) (2), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c; Garbutt v. Blanding Mines, 10 Cir., 141 F.2d 679; Pliner v. Nesvig, D.C., 42 F.Supp. 297. Cf. Mumm v. Jacob E. Decker and Sons, 301 U.S. 168, 57 S.Ct. 675, 81 L.Ed. 983. More than that constitutes a breach of the rule of simplicity, conciseness and directness, which is the spirit and purpose of modern pleadings. Rule 8(e) (1), F.R.C.P.; De Loach v. Crowley’s, Inc., 5 Cir., 128 F.2d 378; Barnhart v. Western Maryland R. Co., 4 Cir., 128 F.2d 709; Arn v. Bradshaw Oil & Gas Co., 5 Cir., 93 F.2d 728, 730. All doubts and ambiguities concerning the meaning and intendments of the pleader’s language must be resolved in favor of the claim attempted to be stated, and if the language employed to state the claim is not sufficiently definite and particular to enable the adversary to prepare his responsive pleadings or to prepare for trial, the remedy is"
},
{
"docid": "14158542",
"title": "",
"text": "to enforce the arbitration award, which the court did on the authority of the Kornman case, supra, nevertheless remanded the case for consideration of other questions relating to the validity of the award including “the scope of the grievances submitted to arbitration.” [268 F.2d 925.] This suggests that if the award covered grievances not set forth in the agreement it need not be enforced. That court proceeded to make this point even more plain in its subsequent case of Enterprise Wheel & Car Corp. v. United Steelworkers, 4 Cir., 269 F.2d 327, which was also an action to enforce an award of an arbitrator. There the court specially noticed the fact that specific performance under Sec. 301 is restricted by the terms of the contract between the employer and the union. In that case, which concerned the disputed right to discharge certain employees, the arbitrator directed that the discharged man be reimbursed for loss of pay during a period which occurred after the expiration of the contract. Accordingly the court, there declined to enforce the award for recovery of wages beyond the contract, period. In the present case the trial court, held the complaint fatally defective (1) for its failure to set forth the terms of' the collective bargaining agreement, and' (2), because it showed that the action was one “solely to enforce the uniquely personal rights of the said employee, Overall”, which the court said, “does not. come under Sec. 301” of the Act, citing Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348 U.S. 437, 75 S.Ct. 488, 99 L.Ed. 510,. and Communications Workers v. Ohio Bell Telephone Co., D.C., 160 F.Supp. 822,. affirmed by this court at 6 Cir., 265 F.2d 221. We think that it cannot be said, categorically, that this action was one foreclosed by the rule of the Westinghouse case relating to the “uniquely personal' right” of an employee. The mere fact, that an arbitration award may result in-payment of back pay to an employee, orín his reinstatement after discharge, does, not, in and of itself, bring the case within, the Westinghouse rule."
},
{
"docid": "22857910",
"title": "",
"text": "although illegal at the time of suit, were not certainly so when the complained of actions were taken. 751 F.2d at 1477-78 & n. 13. The panel saw qualified immunity as a substantive right overriding liberal pleading rules, often termed notice pleading, the conventional but misleading description of the Civil Rules. Id. at 1479. A concurring opinion doubted judicial authority to impose a pleading rule. Id. at 1483 (Higginbotham, J., concurring specially). It urged that insistence on greater pleading detail ought to rest on the reality that what is short and plain is inseparable from the legal and factual complexity of the case at issue. Id. It reasoned that federal trial judges could insist that to state a claim, short and plain, against a public official, a plaintiff must at least chart a factual path to the defeat of the defendant’s immunity, free of conclusion. See id. The majority in Elliott and the cases that followed treated pleading questions as a choice between polar opposites — notice pleading and pleading with particularity. In many if not most cases, however, our insistence on pleading with particularity translated to no more than an insistence that the complaint not plead conclusions. To be sure, we have invoked “heightened pleading” and “pleading with particularity” as a pleading requirement in kinship with Rule 9(b) — but again our “particularity” seldom bit harder in application than an insistence that a plaintiff plead more than conclusions. Had we sim ply insisted that plaintiffs plead more than conclusions in their complaints, our holdings in these post-Elliott cases would not have changed. The pleading hurdle erected was, in actual fact, somewhere between the poles of this perceived bi-polar set. Significantly, the requirement of making a short and plain statement demands more than a statement of conclusions even without the support of Rule 9(b). This is because the Federal Rules of Civil Procedure have, since their inception in 1938, insisted on more than conclusions, and in this sense, have never been a system of notice pleading. Because the Supreme Court has further defined the contours of qualified immunity since Elliott,"
},
{
"docid": "14158545",
"title": "",
"text": "“in violation of the agreement”. The trial court said of this — “this is a conclusion of the pleader * * * the court is not bound by such a conclusion.” Under the notice system of pleading established by the Rules of Civil Procedure, 28 U.S.C.A. the ancient distinction between pleading “facts” and “conclusions” is no longer significant. The question is simply whether, in the words of Rule 8(a) there is “a short and plain statement of the claim”. This statement in the present complaint is short, but it is certainly not plain, absent some showing of the terms of the contract. Sheridan-Wyoming Coal Co. v. Krug, 83 U.S.App.D.C. 162, 168 F.2d 557, 558-59; Marranzano v. Riggs Nat. Bank of Washington, 87 U.S.App.D.C. 195, 184 F.2d 349, 351. Clearly the complaint was inadequate even under the Rules, liberal as they are. This brings us to the question as to what disposition we should make of the case, now that we have held that a motion to dismiss was proper. We must note here that the views which we have expressed give the case a somewhat different aspect than it had under the trial court’s ruling. Under the court’s ruling that the complaint showed that the action was solely to enforce the uniquely personal rights of the employee and hence not within Sec. 301 of the Act because of the decision in the Westinghouse case, supra, it must have concluded that the plaintiff could “prove no set of facts in support of his claim which would entitle him to relief.” However, our treatment of this case discloses that it is impossible to say from the facts here present whether the action would or would not be barred for the reasons stated in the Westinghouse case. By the same token it would appear that it might be possible under the authorities previously cited here to state or prove a claim maintainable under Sec. 301(a). For this reason we feel constrained to make the same disposition of this case as was done by the Court of Appeals in the District of Columbia in"
},
{
"docid": "23175012",
"title": "",
"text": "prison hospital officials’ concern for their patient. Whether this delay was in fact due to the hospital officials’ deliberate indifference to Duncan’s serious medical needs remains to be proved, but the facts alleged certainly give rise to at least an inference of such indifference. Notwithstanding its conclusion that Duncan may be entitled to some kind of relief, the district court dismissed the complaint as to both of the defendants because it failed to allege that they “personally participated in the alleged misconduct.” Relying on the rule that liability for money damages under § 1983 will not be imposed vicariously upon a theory of respondeat superior, see Adams v. Pate, 445 F.2d 105, 108 (7th Cir. 1971), the district court ruled that specific allegations of fact showing personal knowledge or involvement on the part of the defendants were necessary to state such a claim. Because Duncan’s complaint did not allege such facts, the court concluded that dismissal was proper. It is true that a defendant’s direct personal responsibility for the claimed deprivation of a constitutional right must be established in order for liability to arise under 42 U.S.C. § 1983. Adams v. Pate, supra; Stringer v. Rowe, 616 F.2d 993, 1000-1001 (7th Cir. 1980). But by treating this general principle of recovery under § 1983 as a strict rule of pleading and dismissing a complaint which otherwise states a valid claim, we believe the district court ran afoul of the well established requirement that pro se pleadings be held to less stringent standards than those prepared by counsel. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The accepted rule in appraising the sufficiency of the complaint is that it “should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v."
},
{
"docid": "21430843",
"title": "",
"text": "followed by the conclusion that the determinations as made were unconstitutional. Conclusions alone without some averments of fact do not sufficiently give proper notice of a cause of action. Pugliano v. Staziak, 231 F.Supp. 347 (W.D.Pa., 1964). The plaintiff, however, contends that his legal conclusions do support this cause of action and cites from the top of page 341 in Volume 28 U.S.C.A., under Rule 8 as follows: “The real test of a new pleading under the new rules is not, * * * whether the allegations would be deemed good at common law. The test is whether information as given is sufficient to enable the party to plead and prepare for trial. A legal conclusion may serve the purpose of pleading as well as anything else if it gives the proper information.” (45 W.Va.L.G. 5) The real purpose of Rule 8 is to provide for a pleading which sets forth a claim for relief and contains “(2) a short and plain statement of the claim showing that the pleader is entitled to relief.” Sheridan-Wyoming Coal Co. v. Krug, 83 U.S.App.D.C. 162, 168 F.2d 557, 1948; Walter Reade’s Theatres, Inc. v. Loew’s Inc., 20 F.R.D. 579, D.C.N.Y., 1957; Philadelphia Dressed Beef Co. v. Wilson & Co., 19 F.R.D. 198, D.C.Pa. 1956; McKenzie v. Blidberg Rothchild Co., 12 F.R.D. 392, D.C.N.Y., 1952. Under this Rule the reasonable use of conclusions is not improper if the entire complaint, including such conclusions is sufficient to state a claim upon which the pleader is entitled to relief, and at the same time put the defendant on notice of the precise nature of the claim. Mails v. Kansas City Public Service Co., 51 F.Supp. 562 (D.C.Mo., 1943); Stewart-Warner Corporation v. Staley, 42 F.Supp. 140 (D.C.Pa., 1941); Cox v. Kroger Co., 9 F.R.D. 78 (D.C.Ill., 1949). So that it does not matter if a pleading sets forth conclusions, if such a complaint is sufficiently definite as to give, on the whole, fair notice to the opposite party of the precise nature of the claim. Mails v. Kansas City Public Service Company, supra; Macleod v. Cohen-Erichs Corporation,"
},
{
"docid": "6076398",
"title": "",
"text": "VAN OOSTERHOUT, Circuit Judge. The trial court dismissed this action commenced by plaintiff Wallach which asserted jurisdiction in the federal court under 28 U.S.C.A. § 1331 (federal question) and 28 U.S.C.A. § 1343 (violation of civil rights.) Diversity jurisdiction is not asserted and does not exist. The basic grievances asserted here are the same as those urged in Wallach v. City of Pagedale, 8 Cir., 359 F.2d 57, and are asserted damages flowing from alleged violation by defendants of plaintiff’s constitutional rights. Defendants moved for dismissal of the action on the following grounds: “(a) That the claim asserted against the defendants is not a claim upon which relief can be granted; and “(b) That this Court has no jurisdiction over the subject matter of the claim presented between the plaintiffs and the defendants. “(c) That the petition of plaintiff fails to comply with Rule 8, Federal Rules of Civil Procedure in that the averments therein are not simple, concise or direct, in respect to jurisdiction, facts or relief and is so vague, ambiguous, rambling and full of irrelevant averments that these defendants cannot be reasonably required to frame a responsive pleading thereto.” The motion to dismiss was sustained. The case was dismissed without prejudice for want of jurisdiction. Plaintiff has appealed from such dismissal. The trial court cited our former opinion in Wallach v. City of Pagedale, supra. We there stated: “There is no doubt that the complaint does not comply with Rule 8 (a) as it does not contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ The complaint is confusing, ambiguous, redundant, vague, and, in some respects, unintelligible. It is also highly argumentative.” 359 F.2d 57, 58. We went on to state that the pleadings, even if given a liberal interpretation, do not state a cause of action against the defendants within the jurisdiction of the federal court, setting forth the basis for such conclusion and supporting authorities. The complaint now before us is much more extensive than the former complaint but in our view it is in greater violation"
},
{
"docid": "21430842",
"title": "",
"text": "State courts’ decisions. The plaintiff was permitted at the argument of this case to submit details, but chose to stand on the statements as made in the complaint. While it is not required that detailed information be made in a complaint in order to support an action against another party, since all that is required is that notice be given, nevertheless, the complaint should specify the nature of the claim in a factual summary. The function of the complaint is to afford fair notice to the adversary of the nature and basis of the claim asserted and a general indication of the type of litigation involved. Continental Collieries v. Shober, 130 F.2d 631, C.A. 3, 1942. In this case the plaintiff enumerated the procedure in the State courts as it originated in the Court of Common Pleas and as it was finalized in the Penn sylvania Supreme Court. From the aver-ments as made there are suggestions that the Judges of the State courts committed error in arriving at their respective determinations and this is then followed by the conclusion that the determinations as made were unconstitutional. Conclusions alone without some averments of fact do not sufficiently give proper notice of a cause of action. Pugliano v. Staziak, 231 F.Supp. 347 (W.D.Pa., 1964). The plaintiff, however, contends that his legal conclusions do support this cause of action and cites from the top of page 341 in Volume 28 U.S.C.A., under Rule 8 as follows: “The real test of a new pleading under the new rules is not, * * * whether the allegations would be deemed good at common law. The test is whether information as given is sufficient to enable the party to plead and prepare for trial. A legal conclusion may serve the purpose of pleading as well as anything else if it gives the proper information.” (45 W.Va.L.G. 5) The real purpose of Rule 8 is to provide for a pleading which sets forth a claim for relief and contains “(2) a short and plain statement of the claim showing that the pleader is entitled to relief.” Sheridan-Wyoming"
}
] |
464719 | petition is $130.60. Because § 507(a)(6)(C) also accords priority status to a penalty which is related to a claim under that section if it is in compensation for actual pecuniary loss, we conclude that the City of Philadelphia is also entitled to priority for its claim of $9.46 in penalties related to the above water and sewer rents. Thus, we find that the claim of the City of Philadelphia for water and sewer rents is a priority claim in the amount of $140.06 and is a general unsecured claim in the remaining amount of $80.76. . This opinion constitutes the findings of fact and conclusions of law required by Rule 752 of the Rules of Bankruptcy Procedure. . Compare REDACTED In re Industrial Cold Storage & Ice Co., 163 F. 390 (E.D.Pa.1908); In re Broom, 123 F. 639 (W.D.N.Y.1903) with In re Hills, 221 F. 260 (2d Cir. 1915); In re Park Brew Co., 35 Am.B.R. 652 (D.R.I.1915). See generally, 3A Collier on Bankruptcy ¶ 64.404[1] and [2] at 2167-74 (14th ed. 1978). . The attachment to the proof of claim lists penalties due after March 15, 1980, of $3.10, $2.61, $2.12 and $1.63, totaling $9.46. . Any secured status which the claim of the City of Philadelphia may have by virtue of Pa.Stat.Ann. tit. 53, §§ 2231, 2934 and 7101 et seq. (Purdon) has been lost because the City of Philadelphia did not timely file a proof of secured | [
{
"docid": "21676564",
"title": "",
"text": "HICKS, Circuit Judge. Barberton, Ohio, owned and operated water works under the management and control of its director of public service. His authority is found in sections 3957 and 3958, Ohio General Code. In virtue thereof, he promulgated certain regulations having the effect of ordinances, to wit: That charges for water shall b,e made against the premises supplied and the bill sent to the last known address of the owner; that water rents shall be due quarterly and if not paid within thirty days the water may be turned\" off; that new ownership of premises shall not eliminate the responsibility for payment of arrearages; that every person desiring water must apply in writing for service pipe and connection with the mains; that the application must be signed also by the owner of the property or his duly authorized agent with the distinct understanding that the property is to be held liable for all water rents accrued or which shall accrue against it; that the turning on of water at any premises shall mean that compliance with the rules and regulations of the Barberton Water Company has been agreed to by the applicant. At the time of bankruptcy the Rubber Products Company owed the city $135i.80 for water. The city insisted (1) that this was a tax entitling it to priority under section 64(a) Bankr. Act 1898 (USC tit. 11, c. 7, § 104(a) [11 USCA § 104(a)]; and (2) that it had a lien on the real estate of the bankrupt to secure payment. The referee denied these contentions. The judge sustained them. He found (1) that the obligation was a tax; and (2) that to secure its payment the city had a lien upon the real estate of the bankrupt. We think the judge reached the correct result. Ordinarily compensation for water furnished by a municipality is not a tax, but it may be brought within such category. Unless hampered by constitutional restrictions, the matter is one of legislative will. If the Legislature remains silent, the city supplies water by contract and the consumer’s obligation is a debt. But"
}
] | [
{
"docid": "12375742",
"title": "",
"text": "in possession and the trustee at least 30 days prior to the hearing.... Thus, the Bankruptcy Code has established a system for filing claims under which all claims are deemed allowed unless an objection to the claim is filed by the debtor. Clearly, the Code and Rules do not envision the use of a plan for objecting to proofs of claim. In re Simmons, 765 F.2d 547, 552 (5th Cir.1985). Accordingly, because no objection to the IRS’ claim was filed by the Debtors, the IRS’ claim should be deemed allowed. INTEREST ON PRIORITY TAXES Even if the Debtors had properly objected to the IRS’ proof of claim, their argument that interest on taxes qualifying for priority status under section 507(a)(7) is not also granted priority status would fail. Section 507(a)(7) provides priority for allowed unsecured claims of governmental units to the extent that such claims are for: (A) A tax on or measured by income or gross receipts— (i) for a taxable year ending on or before the date of the filing of the petition for which a return, if required, is last due, including extensions, after three years before the date of the filing of the petition; (ii) assessed within 240 days, plus any time plus 30 days during which an offer in compromise with respect to such tax that was made within 240 days after such assessment was pending, before the date of the filing of the petition; or (iii) other than a tax of a kind specified in section 523(a)(1)(B) or 523(a)(1)(C) of this title, not assessed before, but assessable, under applicable law or by agreement, after, the commencement of the case ... (G) A penalty related to a claim of a kind specified in this paragraph and in compensation for actual pecuniary loss. The vast majority of courts dealing with the issue have held that interest on taxes accorded priority status under section 507(a)(7) is properly granted priority status as well. In re Reich, 66 B.R. 554, 557 (Bankr.D.Colo.1986); In re Keller & Katkowsky, 55 B.R. 155, 156-157 (Bankr.E.D.Mich.1985); In re Palmer, 53 B.R. 545, 549"
},
{
"docid": "8621983",
"title": "",
"text": "out of the surplus realized from the sale over and above the amount of R. F. C.’s claim. 4. Ordered the trustee, after payment of costs and expenses, to pay taxes due Elbert County and the City of Elberton and to pay the balance to R. F. C. The items ordered by consent to be paid have apparently been already actually paid by the trustee. The law governing distribution is contained in Bankruptcy Act, § 67, 11 U.S. C.A. § 107, and § 64, 11 U.S.C.A. § 104, hereinafter referred to as § 67 and § 64. For discussion of these sections, see Volume 3, Collier on Bankruptcy, 14th Ed., pp. 2054-2084. In general, lien claims fall under Sec. 67 and must be paid in advance of claims under Sec. 64, which provides for priorities in payment of unsecured claims out of the unencumbered part of the estate. Section 67, sub. b preserves certain statutory liens and Sec. 67, sub. c postpones in payment statutory liens on personalty not accompanied by possession and liens of distress for rent to debts specified in 64(1) and (2). Statutory liens on real estate are not postponed but are payable pursuant to Sec. 67, sub. b. In re Pennsylvania Central Brewing Co., 3 Cir., 114 F.2d 1010; see In re Lasky et al., D.C., 38 F.Supp. 24(9). A landlord’s lien is postponed in payment only to claims provided for in the first two clauses of Section 64, but a mere priority or charge for rent under state law is subordinated to debts designated in first four clauses of Section 64. In re Lebed, D.C., 39 F.Supp. 457. Section 64 deals with priorities in payment after liens have been paid. Though a lien for rent is postponed in payment to debts specified in Sec. 64(1) and (2), still the lien is not destroyed but comes under Sec. 67 and not under Sec. 64. In re Goldstein et al., D.C., 34 F.Supp. 876; see In re Jay & Dee Store Co., D.C., 37 F.Supp. 989; See volume 3, Collier on Bankruptcy, 14th Ed., p. 2054. A"
},
{
"docid": "8056464",
"title": "",
"text": "government may avail itself in the event of default in payment. United States v. Phillips, 267 F.2d 374, 377 (5th Cir.1959). Having established this necessary background, we turn now to the bankruptcy law. The IRS asserted its full claim of $61,212.89 was secured by virtue of its filing of the notices of tax lien. Section 506 of the Bankruptcy Code provides this claim will be considered a secured claim only to the extent of the value of the property securing the debt. In re Dewsnup, 908 F.2d 588, 590 (10th Cir.1990), aff'd, — U.S. -, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992). Section 506(a) of the Bankruptcy Code (11 U.S.C. § 506(a)) provides the balance of this secured claim is an allowed unsecured claim. Section 507 of the Bankruptcy Code (11 U.S.C. § 507) establishes a priority for the payment of specified unsecured claims. The seventh priority includes “allowed unsecured claims” to the extent the claim is for “a tax required to be collected or withheld” (trust fund taxes), § 507(a)(7)(C), or “an employment tax on a wage ... earned from the debtor” (non-trust fund taxes), § 507(a)(7)(D). The IRS is an unsecured claimant who has been granted priority status ahead of the general unsecured creditors, thus this claim is a priority claim. Under 11 U.S.C. § 1322(a)(2), the plan must provide for full payment of all unsecured priority claims. The net effect of this mandatory plan provision is to deny discharge of priority tax claims in Chapter 13 bankruptcy plans. Tax claims entitled to priority under § 507(a)(7) are not dischargeable in Chapter 13 bankruptcy. IY Included in the allowed unsecured claim is an amount representing a penalty for the failure to pay the trust fund portion of the taxes. Debtors contend that penalties assessed for nonpayment of federal taxes can be classified only as a general unsecured claim and cannot be classified a priority claim. As a general rule, penalties and the interest thereon are not in compensation for pecuniary loss and are not entitled to priority. Pre-petition tax penalties that are punitive in nature and not evidenced"
},
{
"docid": "11106824",
"title": "",
"text": "concluded that the penalty assessments did not satisfy all of the requirements of section 507(a)(6)(G) because the taxing entity failed to show that the penalty was not punitive, and therefore the claim for penalties was not accorded priority under section 507(a)(6)(G). 26 B.R. at 936-37, 10 Bankr.Ct.Dec. at 229, 8 Collier Bankr.Cas.2d at 333. See also In re Hernando Appliances, Inc., 41 B.R. at 25. Accordingly, the Court concludes that the claim for interest in the sum of $53.51 is entitled to priority along with the underlying section 507(a)(6) taxes because the interest is a pecuniary loss penalty related to a tax claim under section 507(a)(6). See In re Keller & Katkowsky, 55 B.R. at 157; In re Palmer, 53 B.R. at 549. Accord In re Treister, 52 B.R. at 737, 13 Collier Bankr.Cas.2d at 535-36; In re Hernando Appliances, Inc., 41 B.R. at 25. The Court also concludes that the claim for costs in the sum of $19.46 is a pecuniary loss penalty and is related to the section 507(a)(6) tax claim and entitled to priority under section 507(a)(6)(G). The claim for penalties in the sum of $28.52, however, is not entitled to such status because the Court is not persuaded that the penalty was assessed for strictly compensatory purposes. See In re New England Carpet Co., 26 B.R. at 937, 10 Bankr.Ct.Dec. at 229, 8 Collier Bankr.Cas.2d at 333; In re Hernando Appliances, Inc., 41 B.R. at 25. The Court, therefore, determines that the penalty must be treated under section 726(a)(4). See In re Ayala, 35 B.R. at 656, 11 Bankr.Ct.Dec at 374. D. Prepetition Claims Section 507(a)(6)(B) gives priority to taxes assessed against a debtor’s property before the commencement of the case and last payable without penalty after one year before the date of the filing of the petition. 11 U.S.C.A. § 507(a)(6)(B) (West 1979). Pursuant to section 507(a)(6)(B), the Court finds that Defendant’s claim for pre-petition taxes in the sum of $1118.10 is entitled to priority under section 507(a)(6)(B). For the reasons previously stated, the Court finds that the claim for interest in the sum of"
},
{
"docid": "23345733",
"title": "",
"text": "not paid, and whether or not contested before and adjudicated by a judicial or administrative tribunal or competent jurisdiction. In the instant case, there had been no dispute raised by the Debtor, the Trustee, nor any of the parties of interest, as to the amount of the tax assessments for years 1979,1980, and 1981. Further, there was no evidence submitted by the parties which would draw the assessments, as made by the City of Winooski, into question. However the Court after closely scrutinizing the tax assessments finds that certain issues arise as to the penalties and the water rents. As for the real estate tax and the personal property tax assessments, the Court in view of the Debtor’s admission of liability in its schedules, finds that further inquiry and determination of those taxes is unnecessary. A. WHETHER THE PENALTIES ASSESSED BY THE CITY OF WI-NOOSKI AGAINST NEW ENGLAND CARPET COMPANY, INC., FOR DELINQUENT PERSONAL PROPERTY, REAL ESTATE, AND WATER RENTS ARE ENTITLED PRIORITY UNDER SECTION 507(a)(6) OF THE CODE? Section 507(a)(6)(G) addresses the issue of the types of penalties entitled to priority under the Code, when such penalties are related to a tax. As stated in 11 U.S.C. § 507(a)(6)(G): (a) The following expense and claims have priority in the following order: (6) Sixth, allowed unsecured claims of governmental units to the extent that such claims are for— (G) a penalty related to a claim of a kind specified in this paragraph and in compensation for actual pecuniary loss. There is no doubt that the penalties assessed by the City of Winooski upon New England Carpet Company, Inc., are related to claims of a kind set forth in Section 507(a)(6)(B). (See In re Adams, 17 B.R. 742 (Bkrtcy.E.D.Pa.1982), for the treatment of water and sewer rents as Section 507(a)(6)(B) property taxes). However, it is questionable that a compensatory role should be assigned to these penalties in light of the fact that interest is additionally charged. The pecuniary loss to the City of Winooski is the loss of the use of the tax money. This is precisely the kind of loss"
},
{
"docid": "21584702",
"title": "",
"text": "of 11 U.S.C. § 506(e) and could recover post-petition real estate taxes and water/sewer rents under that section. “Because the district court sits as an appellate court in bankruptcy cases, our review of the district court’s decision is plenary. This [c]ourt’s standard of review is clearly erroneous as to findings of fact by the bankruptcy court, and plenary as to conclusions of law.” In re Stendardo, 991 F.2d 1089, 1094 (3d Cir.1993) (citation omitted). The issue in this appeal is whether the bankruptcy court and district court correctly interpreted and applied the legal standard contained in § 506(c), and we will therefore exercise plenary review. See Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1203 (3d Cir.1992). In Eqwibank, we held that the automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362(a)(4), “prevents the creation of a lien post-petition.” 884 F.2d at 84. The only amounts in question in this appeal are post-petition real estate taxes and water/sewer rents, and therefore the City’s taxes and rents have not and cannot attain lien status for purposes of the Bankruptcy Codé. Id. at 84r-85. The code ... provides two options for payment of taxes that have not attained lien status as of the date of the entry of the stay. First, they may be payable by the trustee, either as first priority administrative expenses, see 11 U.S.C. § 503(b)(l)(B)(i), or as seventh priority expenses, 11 U.S.C. § 507(a)(1). Second, they may be payable by the secured creditor as payment for benefit received, see 11 U.S.C. § 506(c). Eqwibank, 884 F.2d at 83. The parties dispute whether the City could properly receive payment for the real estate taxes and water/sewer rents pursuant to the second option. Section 506(c) of the Bankruptcy Code provides that: “The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” 11 U.S.C. § 506(c). Our decisions have clarified that to recover expenses under § 506(c), a claimant must demonstrate"
},
{
"docid": "3624969",
"title": "",
"text": "that many hours for which compensation is sought are not shown to have been devoted to the performance of professional legal services. Unless accompanied by unusual difficulties, the actual performance of fiduciary duties of the receiver and trustee in bankruptcy are their own responsibility not the responsibility of their counsel; including the obligation to reduce the estate to money, In re Mabson Lumber Co., Inc., 394 F.2d 23, 24 (2d Cir. 1968); Bankruptcy Act § 47(a)(1), 11 U.S.C. § 75(a)(1); Bankruptcy Rule 605(a), to pay routine bills, 3A Collier on Bankruptcy ¶ 69.09[1] 14th ed. at 1511, including taxes, In re Union Dredging Company, 225 F. 188, 195 (D.Del.1915), to arrange insurance coverage for the estate, 3A Collier, supra ¶ 62.09[1], to examine books and records of the estate, see In re J. M. Wells, Inc., 575 F.2d 329, 331 (1st Cir. 1978); In re Mabson Lumber Co., Inc., supra at 24, and to sell real estate of the business as a going concern, In re Leader International Industries, Inc., 2 B.C.D. 588, 590 (E.D.Mich.1976); see also Bankruptcy Act § 70(f); 11 U.S.C. § 110(f). There were unusual difficulties in this case relating to various real and personal property sales that required legal expertise, involving tax loss carryovers, lien status determinations (perfection and priority), and problems relating to mortgage interest rates and moratoria. Other activities required legal expertise as well, particularly negotiations for postpetition payment and indemnity arrangements, and moratoria, as well as negotiating and arranging postpetition loans and certificates of indebtedness. See In re Union Dredging Company, 225 F. 188, 195 (D.Del.1915). Although examining and objecting to claims is a statutory duty of the trustee, In re Cliff House Motor Hotel, 2 B.C.D. 460, 461 (W.D.Mo.1976); Bankruptcy Rule 218, the difficult problems here posed warranted the services of an attorney in evaluating the allowability, priority and secured status of claims. In those instances where insufficient explanatory information did not enable a determination of the precise nature of the services rendered, the court felt compelled to determine that the services were not compensable as legal services, see In re Hamilton"
},
{
"docid": "3995258",
"title": "",
"text": "this provision to taxes accruing since the filing of the petition has been decided in several cases. Collier (6th Ed.) p. 529, note 22k; Swarts v. Hammer, 194 U. S. 441, 24 Sup. Ct. 695, 48 L. Ed. 1060. Whether the word “taxes” includes water rents due to a municipality is a question about which there is, perhaps, room for a difference of opinion. It was decided in Re Stalker (D. C.) 123 Fed. 961, that an assessment levied for a local improvement is a “tax” entitled to priority of payment under this section, while it was •held by the same judge in Re Broom (D. C.) 123 Fed. 639, that a ■lessee’s failure to pay water rents, in violation of a covenant in his .lease, did not give the lessor or the municipality a claim to priority against the lessee’s estate in bankruptcy. This ruling, however, is •expressly put upon the ground that the lessee’s -obligation is contractual only, and therefore that the claim was not a “tax” against the bankrupt. In my opinion a water rent due to the city of Philadelphia is certainly within the spirit of .section 64a. It is levied annually against the property as a tax is levied; it is made a lien by statute in like manner, and is enforced by the same remedies that are appropriate to the collection of a tax; and the amount due is similarly available for public purposes. The same reasons of policy that moved Congress to ordain priority for taxes justify the courts, I think, in giving the word a construction broad enough to include such other municipal claims as are practically indistinguishable in their nature and effect from taxes, strictly so called. The equitable right of the mortgagee to have the balance of the irent applied to the unpaid interest upon his mortgage has been affirmed by some courts and denied by others. Under the facts found by ithe referee, I do not think that the right can be properly rested upon the clause in the mortgage that conveyed the real estate to the mortgagee “together"
},
{
"docid": "21584699",
"title": "",
"text": "Associates failed to provide adequate services to its patients and on October 28, 1988, the facility was closed by the Department of Health of the Commonwealth of Pennsylvania. C.S. Associates’ unsecured creditors’ committee presented a plan of reorganization which called for the sale of the facility; however, this effort failed because, prior to the confirmation of the plan, the facility was repeatedly and severely vandalized from late September through December, 1989. On April 18, 1990, pursuant to a motion filed by the United States Trustee, the bankruptcy court ordered the debtor’s ease converted to a case under Chapter 7 of the Bankruptcy Code. Thereafter, Mitchell W. Miller was appointed Chapter 7 Trustee for the debtor. During the pendency of C.S. Associates’ Chapter 7 proceeding, the City of Philadelphia filed two proofs of claim for post-peti tion administrative real estate taxes and water/sewer rents, totalling $548,706.80, which had been assessed against the facility. The City also filed a proof of claim for pre-petition real estate taxes and water/sewer rents, totalling $48,803.46, which under the applicable state law had properly become liens against the facility. By order dated November 10, 1992, the bankruptcy court approved the sale of the facility for $2,416,000, free and clear of all liens and encumbrances. UJB thereafter filed an action with the bankruptcy court to predetermine the extent, validity, and respective priority of any and all liens on the facility and, accordingly, on the proceeds of the approved sale. The City maintained that both its pre-petition and post-petition real estate taxes and water/sewer rents had priority over UJB’s secured claim. The bankruptcy court, in accordance with our holding in Eqwibank, N.A. v. Wheeling-Pittsburgh Steel Corp., 884 F.2d 80, 84-85 (3d Cir.1989), held that the City’s pre-petition liens had priority over UJB’s secured claim as to the sale proceeds. However, the bankruptcy court held that the City’s post-petition real estate taxes and water/sewer rents did not have priority over UJB’s secured claim as to the sale proceeds. The bankruptcy court went on to suggest that the City might be able to recover its post-petition real estate taxes and"
},
{
"docid": "4645319",
"title": "",
"text": "MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER STEPHEN D. GERLING, Bankruptcy Judge. The Court has before it an objection to tax claims. FACTS Gary E. and Janice M. Henderberg (“Debtors”), dairy farmers on the southwest outskirts of Rome, County of Oneida, New York, filed a voluntary petition in bankruptcy pursuant to Chapter 11 of the Bankruptcy Code, 11 U.S.C.A. §§ 101-1330 (West 1979 & Supp.1989) (“Code”), on January 13, 1987. On March 9, 1987, Debtors filed schedules of assets and liabilities which, in Schedule A-l, listed the Rome City Treasurer (“Rome”) and the Oneida County Commissioner of Finance (“Oneida County” or “the County”) as having priority tax claims in the amount of $800.00 and $11,000.00 respectively. Both municipalities were listed on the bankruptcy mailing matrix. On July 7, 1987, the claims bar date, Rome filed a priority proof of claim in the amount of $7,098.97 for seven properties, specifically deleting that part of the form referring to the claim’s status as secured while noting tax liens. It attached copies of tax search certificates, dated March 18 and 24, 1987, “covering unpaid city and school taxes, special assessments and water rents” for the years 1985 through 1987 and 1987 County taxes, with interest and penalties accruing through the month of March 1987. Oneida County did not file any proof of claim. The Debtors filed their Chapter 11 Disclosure Statement and Plan on June 7, 1988. The Disclosure Statement, after a hearing on notice to all creditors and parties in interest on April 15, 1988, was approved by Order entered September 1, 1988. Under Article II of the Plan, entitled “Classification of Claims” and containing eight classes, the tax claims of Rome and Oneida County were listed in Class 1 as “[ajllowed real property tax claims having priority under the provisions of 11 U.S.C. section 507(a)(7)(B).” Class 8 under the Plan, entitled “Allowed General Unsecured claims,” was comprised of “all unsecured creditors, other than priority Class 1 creditors and the Class 7 lessor” and included “real property tax claims not accorded priority status, if any.” Article 1 defined “Allowed Claims”"
},
{
"docid": "10527392",
"title": "",
"text": "nondischargeable tax debt; the only difference is whether the debtor owes the debt to the government or the surety. The court has already answered the argument that it is unfair for the debtor to be forced to pay for the surety bond and still be liable for nondischargeable taxes. The court concludes that Safeco can be subrogated do the nondischargeability of a state tax claim. The court turns now to the question of whether fees for hunting and fishing licenses are a tax. (2) Whether the fees are a tax under the priority statute or the exception from discharge is a question of bankruptcy law. It is not a question of state law or a question of federal law on subjects other than bankruptcy. New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284 (1906). The same question arose under the priority and dischargeability provisions in the prior law, the Bankruptcy Act of 1898. 1A J. Moore, Collier on Bankruptcy ¶ 17.14[9] (14th ed. 1988). The court has found nothing in the legislative history of the present Bankruptcy Code to indicate a change in the meaning of “tax”. Thus, decisions under the Bankruptcy Act of 1898 are still good law on the question of whether a fee is a tax or not, except for decisions that treat the question as controlled by state law. The easiest distinction between a tax and a non-tax debt arises when the government is doing business in much the same way as a private enterprise. When a government owned water company sells water by the gallon, the bill is for the purchase of the water; it is not a tax. County Sanitation District v. Lorber Industries of California, Inc., 675 F.2d 1062 (9th Cir.1982) (charges for wastewater treatment); In re Hills, 221 F. 260, 34 Am.Bankr.Rep. 43 (2d Cir.1915); but see McDowell v. City of Barberton, Ohio, 38 F.2d 786 (6th Cir. 1930); In re Industrial Cold Storage & Ice Co., 163 F. 390, 20 Am.Bankr.Rep. 794 (E.D.Pa.1908). Of course, the furnishing of water may be considered a public purpose, and the"
},
{
"docid": "21584703",
"title": "",
"text": "lien status for purposes of the Bankruptcy Codé. Id. at 84r-85. The code ... provides two options for payment of taxes that have not attained lien status as of the date of the entry of the stay. First, they may be payable by the trustee, either as first priority administrative expenses, see 11 U.S.C. § 503(b)(l)(B)(i), or as seventh priority expenses, 11 U.S.C. § 507(a)(1). Second, they may be payable by the secured creditor as payment for benefit received, see 11 U.S.C. § 506(c). Eqwibank, 884 F.2d at 83. The parties dispute whether the City could properly receive payment for the real estate taxes and water/sewer rents pursuant to the second option. Section 506(c) of the Bankruptcy Code provides that: “The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” 11 U.S.C. § 506(c). Our decisions have clarified that to recover expenses under § 506(c), a claimant must demonstrate that (1) the expenditures are reasonable and necessary to the preservation or disposal of the property and (2) the expenditures provide a direct benefit to the secured creditors. Equibank, 884 F.2d at 84, 86-87; In re McKeesport Steel Castings Co., 799 F.2d 91, 94-95 (3d Cir.1986); see also In re Glasply Marine Indus., 971 F.2d 391, 394 (9th Cir.1992) (“[T]o satisfy the benefits prong [of § 506(c) the claimant] must establish in quantifiable terms that it expended funds directly to protect and preserve the collateral.” (internal quotation marks omitted)); In re Flagstaff Foodservice Corp., 762 F.2d 10, 12 (2d Cir.1985) (“[T]o warrant [§] 506(c) recovery ... [the claimant] must show that ... funds were expended primarily for the benefit of the creditor and that the creditor directly bene-fitted from the expenditure.”). In considering whether the post-petition real estate taxes and water/sewer rents assessed by the City qualified for treatment under § 506(c), the bankruptcy court stated: The City’s taxes and water and sewer rents are costs which necessarily accrued against the Property during the period"
},
{
"docid": "10275088",
"title": "",
"text": "Fondren properties. No assessment date is indicated on either “Bankruptcy Tax Statement” to aid the Court in determining when the assessment was made. This is of particular significance as § 507(a)(7)(B) allows a seventh priority for: ... allowed unsecured claims of governmental units, only to the extent that such claims are for— (B) a property tax assessed before the commencement of the case and last payable without penalty one year before the date of the filing of the petition; (Emphasis added). Neither the proof of claim nor its attachments reflect an assessment date or any indication when the penalties were imposed for a determination of compliance with § 507(a)(7)(B). Additionally, the City of Houston intentionally presented no witness testimony in support of its claim (See, letter dated 12-3-87 from City of Houston addressed to Clerk of Courts). Having failed to sustain its burden in this regard, the City of Houston’s claim is hereby denied priority tax status. Further, the City of Houston presented no evidence to demonstrate that it had sustained an actual pecuniary loss which would serve as a basis for an attached penalty under § 507(a)(7)(G). Having failed to so so, the penalties attached to the City of Houston's claim are hereby disallowed, as no pecuniary loss was established. Additionally, the City of Houston seeks interest on each tax assessed against both properties. Again, it is noted that the City of Houston introduced no evidence other than its proof of claim and Houston Delinquent Tax Statements in support of its claim. Nevertheless, where a claim is oversecured and is nonconsensual in nature, postpetition interest is disallowed. See, In re Ron Pair Enterprises, Inc., 828 F.2d 367 (6th Cir.1987). In the present matter, the City of Houston’s claim is oversecured, nonconsensual, and seeks an allowance of postpetition interest. Thusly, the interest payments are hereby disallowed. See also, In re Lumara Foods of America, Inc., 50 B.R. 809 (Bankr.N.D.Ohio 1985); 3 Collier on Bankruptcy, 11503.04 at 503-39 (15th Ed.1986). Lastly, the parties are in dispute as to the proper appraisal method to be utilized in establishing a value for the"
},
{
"docid": "3995257",
"title": "",
"text": "the purchaser ■ was John P. Mathieu, that he bought subject to the taxes and water rent, and that he does not complain of the distribution of the rents in question among the general •creditors. It is true that Mathieu was the nominal purchaser, and that the sheriff’s deed was made to him; but I agree with the referee’s finding that the mortgagee was the real party in interest, and that the title was taken and is held in his behalf. The disj^ute therefore is between the general creditors and the mortgagee himself, and is to be ^decided from that point of view. With regard to the taxes and water rent due to the city of Philadelphia, there seems to be little difficulty. So far as the taxes are concerned, the command of section 64a (Act July 1, 1898, c. 541, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447]) is express: “Tbe court shall order the trustee to pay all taxes legally due and owing Jt>y the bankrupt,” etc. And the application of this provision to taxes accruing since the filing of the petition has been decided in several cases. Collier (6th Ed.) p. 529, note 22k; Swarts v. Hammer, 194 U. S. 441, 24 Sup. Ct. 695, 48 L. Ed. 1060. Whether the word “taxes” includes water rents due to a municipality is a question about which there is, perhaps, room for a difference of opinion. It was decided in Re Stalker (D. C.) 123 Fed. 961, that an assessment levied for a local improvement is a “tax” entitled to priority of payment under this section, while it was •held by the same judge in Re Broom (D. C.) 123 Fed. 639, that a ■lessee’s failure to pay water rents, in violation of a covenant in his .lease, did not give the lessor or the municipality a claim to priority against the lessee’s estate in bankruptcy. This ruling, however, is •expressly put upon the ground that the lessee’s -obligation is contractual only, and therefore that the claim was not a “tax” against the bankrupt. In my opinion"
},
{
"docid": "23345734",
"title": "",
"text": "the types of penalties entitled to priority under the Code, when such penalties are related to a tax. As stated in 11 U.S.C. § 507(a)(6)(G): (a) The following expense and claims have priority in the following order: (6) Sixth, allowed unsecured claims of governmental units to the extent that such claims are for— (G) a penalty related to a claim of a kind specified in this paragraph and in compensation for actual pecuniary loss. There is no doubt that the penalties assessed by the City of Winooski upon New England Carpet Company, Inc., are related to claims of a kind set forth in Section 507(a)(6)(B). (See In re Adams, 17 B.R. 742 (Bkrtcy.E.D.Pa.1982), for the treatment of water and sewer rents as Section 507(a)(6)(B) property taxes). However, it is questionable that a compensatory role should be assigned to these penalties in light of the fact that interest is additionally charged. The pecuniary loss to the City of Winooski is the loss of the use of the tax money. This is precisely the kind of loss that the interest is supposed to compensate. Therefore, without the submission of evidence by the City of Winooski to show that the penalties are not punitive, the penalties are not entitled to priority. However, the lack of priority does not alter the propriety of the penalty. As such, the Court has determined pursuant to Section 505(a)(1) that the penalties as assessed by the City of Winooski are assessed in the proper amounts. B. WHETHER THE WATER RENT TAX DETERMINED BY THE CITY OF WINOOSKI IS A TAX LIABILITY OF THE DEBTOR, NEW ENGLAND CARPET COMPANY, INC.? The City of Winooski has asserted that the 1981 and 1982 water rents are the tax liabilities of the Debtor. The Court immediately notes that there has been no evidence submitted besides the Debtor’s schedules, to indicate that the Debtor is the owner of such real property upon which a lien for such a tax may be imposed under 24 Y.S.A. § 3306. As such, the claim shall be presumed to be unsecured. Section 3306 of Title 24 of"
},
{
"docid": "11106819",
"title": "",
"text": "Chapter 7 conversion, is entitled to priority under section 507(a)(6). The Court now must determine to what priority Defendant's claim for penalties, interest, and costs is entitled. Section 507(a)(6)(G) confers priority status to a penalty related to a tax claim under section 507(a)(6) if the penalty is in compensation for actual pecuniary loss. 11 U.S.C.A. § 507(a)(6)(G) (West 1979). As noted by Senator Dennis DeConcini in the Congressional Record: For purposes of the above priority rules, the House amendment adopts the provision of the Senate bill that any tax liability which, under otherwise applicable tax law, is collectible in the form of a “penalty,” is to be treated in the same manner as a tax liability. In bankruptcy terminology, such tax liabilities are referred to as pecuniary loss penalties. Thus, any tax liability which under ... State or local tax law is payable as a “penalty,” ... will be entitled to the priority which the liability would receive if it were expressly labeled as a “tax” under the applicable tax law. However, a tax penalty which is punitive in nature is given subordinated treatment under section 726(a)(4). 1978 U.S. Code & Cong. Admin. News 5787, 6505, 6567-68 (emphasis added). See also In re Palmer, 53 B.R. 545, 548 (Bankr.N.D.Tex.1985); In re Ayala, 35 B.R. 651, 655,11 Bankr.Ct.Dec. 371, 373 (Bankr.Utah 1983); 3 Collier on Bankruptcy 11507.-04[7][h] (15th ed. 1986). The Court notes that there has been a split among the courts on the issue of whether interest on a tax claim under section 507(a)(6) is to be accorded priority along with the section 507(a)(6) tax claim. Some courts allow claims for interest to be accorded the same priority as the underlying tax when the interest appears to be assessed against the debtor’s property solely for compensatory purposes. See In re Keller & Katkowsky, 55 B.R. 155, 157 (Bankr.E.D.Mich.1985); In re Palmer, 53 B.R. at 546-49; In re Treister, 52 B.R. 735, 737, 13 Collier Bankr.Cas.2d 534, 535-36 (Bankr.S.D.N.Y.1985); In re Hernando Appliances, Inc., 41 B.R. 24, 25 (Bankr.N.D.Miss.1983). Those courts granting interest the same priority as the underlying tax justify"
},
{
"docid": "1071213",
"title": "",
"text": "for this amount. The remaining portion of its claim, $10,311.62 is unsecured. See 11 U.S.C. § 506(a). 11 U.S.C. § 522(c)(1) does not change this result. See In re Spohn, supra. Payments made to the IRS pursuant to a chapter 13 plan are involuntary. Accordingly, the IRS will be entitled to direct the application of payments. See Muntwyler, 703 F.2d 1030 (7th Cir.1983), and discussion of Muntwyler in Calkins, 74 B.R. 218 (Bankr.W.D.Wis.1987), and Riley, Adv.Pro. No. 85-0223-13, slip op. (Bankr.W.D.Wis. July 15, 1987). IRS has stated that it would be in its best interests to apply the value of the collateral against the 1978 tax indebtedness as this claim is the oldest and would not be entitled to priority treatment. After application of the $4,350.00, the 1978 tax lien would be unsecured to the extent of $1,812.21. The IRS concedes that this unsecured portion of its claim must be accorded general unsecured status as it does not fall within the three year period required for priority treatment under 11 U.S.C. § 507(a)(7)(A)(i). The IRS also concedes that the penalty claims for the tax periods of 1979 and 1982 are not entitled to priority treatment under 11 U.S.C. § 507(a)(7)(G) because they are punitive in nature, rather than being compensation for actual pecuniary loss as required by that section. Mikrut correspondingly concedes that the actual tax due for the 1979 period is entitled to priority treatment under 11 U.S.C. § 507(a)(7)(A)(ii). The parties disagree as to the treatment to be accorded the interest claims for the 1979 and 1982 tax periods. Mikrut cited only one case, In re Razorback Ready-Mix Concrete Co., 45 B.R. 917 (Bankr.E.D.Ark.1984), where a court has held that pre-petition interest must be given general unsecured, rather than priority status. Id. at 924. The Razorback court reviewed the legislative history of 11 U.S.C. § 507 and 11 U.S.C. § 726 and concluded: [T]hat it cannot agree with the Government’s position with regard to whether pre-petition interest on the tax claims should be given priority status. Clearly, the interest is a part of the government’s allowed ‘claim.’ But"
},
{
"docid": "18792898",
"title": "",
"text": "status: it was last due more than three years prior to the debtors’ petition; and was assessed in 1979, well beyond 240 days of the petition. See In re Coleman American Moving Services, Inc., 20 B.R. 267 (Bankr.D.Kan.1981). We conclude that no priority status exists for the debtors’ 1978 tax indebtedness and hence no full deferred payments need to be made on the 1978 unsecured tax claim in the amount of $2,043. On the other hand, because the taxes due for the years 1980, 1981, and 1982 do not fall within the 507(a)(7)(A) exception to priority payment status they must be considered a priority claim. The second portion of Claim No. 2, pertaining to the penalties due on the 1980, 1981 and 1982 taxes, fails to qualify for priority status. Section 507(a)(7)(G) provides the appropriate allowance only for “a penalty related to a claim of a kind specified in this paragraph and in compensation for actual pecuniary loss.” 11 U.S.C. § 507(a)(7)(G).. The plain meaning of the language of section 507(a)(7)(G) is that if a penalty is assessed as part of a claim, it receives no priority treatment unless assessed as a measure of the government’s actual pecuniary loss. The penalty assessed by the IRS presents a situation analogous to one addressed by a Vermont Bankruptcy Court in the case of In re New England Carpet Company, 26 B.R. 934 (Bankr.D.Vt.1983). In New England Carpet, the City of Winooski had assessed interest and penalty charges in addition to the debtor’s delinquent real estate taxes. The Vermont Court held that: it is questionable that a compensatory role should be assigned to these penalties in light of the fact that interest is additionally charged. The pecuniary loss to the City of Winooksi is the loss of the use of the tax money. This is precisely the kind of loss the interest is supposed to compensate. Therefore, without the submission of evidence by the City of Winooski to show that the penalties are not punitive, the penalties are not entitled to priority. Id. at 936-37. Inasmuch as the IRS has assessed interest and"
},
{
"docid": "1188660",
"title": "",
"text": "MEMORANDUM AND ORDER GAWTHROP, District Judge. This is an appeal from the decision of the bankruptcy court concerning the bankruptcy trustee’s “strong-arm” power to avoid statutory liens, when the trustee is actually the debtor and, thus, cloaked with hypothetical bona fide purchaser status. The plaintiff-appellees, who filed for Chapter 11 bankruptcy, resided in a house serviced by the water and sewer departments. Before filing for bankruptcy, they had not paid their water and sewer bills. The city entered a lien against the property in the amount of $885.24 ($560.48 first lien + $324.76 unsecured claim without priority). The debtors, standing in the shoes of the trustee, moved to avoid the water and sewer liens, under 11 U.S.C. § 545(2), which provides in pertinent part: Statutory Liens. The trustee may avoid the fixing of a statutory lien on property of the debtor to the extent that such lien (2) is not perfected or enforceable on the date of filing of the petition against a bona fide purchaser that purchases such property on the date of the filing of the petition, whether or not such a purchaser exists. The lien at issue has been held to be a such statutory lien. The bankruptcy court granted debtor’s motion to avoid the debt, 100 B.R. 217. That ruling is now on appeal before this court under 28 U.S.C. § 158(a). Discussion Whether the debtor, standing in the shoes of the bankruptcy trustee, as a purported bona fide purchaser, can avoid city water liens has been addressed a number of times in related cases. See McLean v. City of Philadelphia, Water Rev. Bureau and Aikens v. City of Philadelphia, Water Rev. Bureau, 891 F.2d 474 (3rd Cir.1989). In those cases, the Third Circuit held that because the city had “failed to notify the public that it kept records of water liens in the water lien books,” the liens could be avoided. The court concluded, however, that the “defect in the indexing system is one which appears to be easily remediable by the Prothonotary.” Id. at 480. To remedy this defect in notice and indexing, the"
},
{
"docid": "21584709",
"title": "",
"text": "by § 506(c). Monies a government entity derives from the collection of real property taxes fund many governmental operations and services which are not directly related to preservation and disposal of the asset and in no way provide a benefit to the secured creditor. Real estate tax revenues support public parks, libraries, schools, and social services, which do not constitute expenses peculiarly connected with preserving or disposing of the parcel of land. Moreover, the Bankruptcy Code explicitly sets forth the level of priority to be afforded unsecured tax claims. Section 503 ... indicates that tax claims are generally afforded the status of ordinary administrative expenses, thereby receiving first priority after secured claims, unless they are the type of taxes specified in § 507(a)(7), in which case they will receive a seventh ranked priority after secured claims. In re Parr Meadows Racing Ass’n, 92 B.R. 80, 35-36 (E.D.N.Y.1988) (citations omitted), aff'd in part, rev’d in part on other grounds, 880 F.2d 1540 (2d Cir.1989). This, reasoning is persuasive and we adopt it. Accord In re Glasply, 971 F.2d at 394 (“Even the small fraction of property taxes supplying fire protection fails the benefits prong [of § 506(c)] because it does not ‘directly’ protect and preserve the collateral. The incidental benefits derived by [the secured creditor] from [the payment of] property taxes do not trigger section 506(c).” (citation omitted)). Accordingly, the incidental benefits which the secured creditor received through general municipal services to the property do not justify recovery by the City under § 506(c) for the post-petition real estate taxes and water/sewer rents which accrued as to the subject property. The City argues that since the debtor retained no equity in the subject property, UJB as the secured creditor received the full benefit from the sale of the property. The City argues that having the property on the market benefitted UJB because it was able to obtain the best available price for the property, and therefore real estate taxes and water/sewer rents which necessarily accrued during that time frame should be recoverable under § 506(c). We reject this argument. Simply because"
}
] |
157920 | that unless the government showed he was more than a visitor to the Spatz Avenue address, the jury could not have found that he had knowledge of and intent to participate in the drug enterprise being conducted there. “The residency issue was essentially,” he says, his “only defense.” Many courts, including ours, have held that merchandise receipts, utility bills, and similar documents are not hearsay when they are offered as circumstantial evidence to link a defendant to a particular place, to other defendants, or to an illegal item. United States v. Thornton, 197 F.3d 241, 251 (7th Cir.1999) (receipts, utility bills, and business cards were admissible to show the relationship of coconspirators to each other or to an item seized); REDACTED United States v. Patrick, 959 F.2d 991, 999-1000 (D.C.Cir.1992) (television sales receipt bearing defendant’s name was admissible because it was found in the same bedroom as cocaine and a weapon); United States v. Arrington, 618 F.2d 1119, 1127 (5th Cir.1980) (utility bills found during search of house were admissible to prove defendant resided there). In such cases, the documents are not introduced for the truth of the matters they assert — for example, that the defendant rented a car, bought a television, or used 500 kilowatt hours of electricity. Rather, the documents are “introduced for the inferences that may be drawn | [
{
"docid": "23469600",
"title": "",
"text": "admissible nonhearsay to show circumstantial relationship of parties to scene, contraband, and other parties); United States v. Patrick, 959 F.2d 991, 999-1000 (D.C.Cir.1992) (name found on receipt admissible for honhear-say purpose of showing that item belonging to defendant found in same room with contraband but not to show that defendant lived in apartment where found because that would rely on the truth of an assertion in the receipt); United States v. Watkins, 519 F.2d 294, 297 (D.C.Cir.1975) (implying no hearsay problem if the prosecution had offered receipts merely to show they were located in the bedroom occupied by the defendant). . David F. Binder, Hearsay Handbook, § 2.07 at 31 (3d ed. 1991) (\"An out-of-court assertion constitutes circumstantial evidence if the trier of fact may, regardless of its truth, infer from it, alone or in combination with other evidence, the existence or nonexistence of a fact in issue. An out-of-court assertion offered as circumstantial evidence is not hearsay.’’); 2 McCormick on Evidence § 250 at 111-12 (John William Strong, ed., 4th ed. 1992); 6 Wigmore on Evidence § 1788 at 313 (Chadbourn Revision 1976) (\"If, then; an utterance can be used as circumstantial evidence, i.e., without inferring from it as an assertion to the fact asserted ..., the hearsay rule does'not oppose any barrier, because it is not applicable.\"); David W. Louisell & Christopher B. Mueller, Federal Evidence, § 417 at 108-22 (1980 & 1992 Supp.); Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence, ¶ 801(c)[01] at 801-77 — 801-82 (1992). . Exhibits 18 and 19 are the rental receipts in the names of McIntyre and Hogg for the address on W. 139th St. in Hawthorne, California. They were found in Vickie Hogg’s luggage. The district court ruled that they were hearsay if offered to prove that Vickie Hogg paid rent for a particular apartment, but that the prosecution could present evidence that a document was found in Vickie Hogg’s possession that contained the address. The prosecution offered testimony of the police officer who found the receipts that he found two receipts that showed the address. R.Vol. VIII at"
}
] | [
{
"docid": "20258957",
"title": "",
"text": "Evidence § 7141, at 251-53 (2000); cf. United States v. Vigneau, 187 F.3d 70, 74 (1st Cir.1999). And unlike words written on money orders, the labels asserted facts that can be characterized as true or false. This appears to be how the district court treated Rhonda’s proposed testimony about the bills. As the court put it, she was prepared to make assertions — based on her reading of the documents — “that these bills were, in fact, bills that were sent to the fraternity on behalf of these various vendors.” Davis also contends that the bills, even if they contained assertions, were not hearsay because Rhonda’s testimony was not offered to show the truth of those assertions. Rather, Rhonda’s “testimony about the bills was offered to show that [Davis] was on notice of instructions to pay, not that the fraternity had taken actions to incur the debt.” Appellant’s Br. 28. Davis is correct that documents “may be admitted for a material purpose other than the verity of [their] assertions.” United States v. Watkins, 519 F.2d 294, 297 (D.C.Cir.1975); see Fed.R.Evid. 801(c) advisory committee’s note; 30B M. Graham, Federal Practice and Procedure: Evidence § 7005 (2006). Davis is also correct that decisions of this circuit have treated names written on bills and receipts as non-hearsay. But in those cases, the documents were offered to link the person whose name was written with the location where the document was found. United States v. David, 96 F.3d 1477, 1481 (D.C.Cir.1996); United States v. Patrick, 959 F.2d 991, 999 (D.C.Cir.1992). The documents’ relevance did not depend on their truth; their mere presence made the connection more likely. Rhonda’s testimony, on the other hand, relied on the truth of the sender and recipient labels — not their location — to identify the documents as fraternity bills. Given defense counsel’s failure to articulate a justification for Rhonda’s proposed testimony independent of the labels’ truth, the court did not abuse its discretion by excluding it. While the court’s evidentiary ruling barring Rhonda’s testimony may not be entirely free from doubt, the court’s application of Rule 408 is"
},
{
"docid": "22998573",
"title": "",
"text": "of the litigation will be less reliable if the evidence is revealed to the jury.”) 2. Rule 801(c) Our conclusion that the district court’s admission of this evidence is not reversible error is supported by a second, independent reason; that is, we accept the government’s argument that the records were not offered for the truth of the matter asserted and thus were not hearsay. Fed.R.Evid. 801(c). In addressing the question of whether the documents at issue were hearsay, we begin by determining what the evidence offered to prove. In the instant case, the government relied heavily on defendant’s mere possession of the records. For example, in closing argument the government reminded the jury of evidence relating to a specific transaction. The government noted that, according to trial testimony, on one occasion a customer was informed that FNCF did not have certain records. However, noting that the records which are now at issue had been seized during the search, the government argued that defendant did indeed have records he had earlier denied that he possessed. During closing argument, the government urged the conclusion that defendant lied to customers when, as a reason for not returning funds, he said that he did not possess the records. If the jury accepted the government’s evidence that (1) the records were in defendant’s possession, and (2) that, as a reason for not returning the funds, defendant told customers that the records no longer existed at his place of business, it could find that defendant intended to defraud those customers. Since this finding would not be contingent on the truth of the matters asserted in the documents, the documents were not hearsay. See, e.g., United States v. Anello, 765 F.2d 253, 261 (1st Cir.) (handwritten messages discovered in wastebasket in business of one conspirator not hearsay when offered to establish conspirators’ knowledge of each other), cert. denied, — U.S.—, 106 S.Ct. 411, 88 L.Ed.2d 361 (1985); United States v. Arrington, 618 F.2d 1119, 1126 (5th Cir.1980) (utility bills not hearsay when offered to prove residence of defendant in house searched), cert. denied, 449 U.S. 1086, 101"
},
{
"docid": "3549997",
"title": "",
"text": "truth of any statement. Cf. United States v. Mazyak, 650 F.2d 788, 792 (5th Cir. Unit B July 1981) (letter found on board vessel smuggling narcotics addressed to defendants properly admitted not to prove truth of matters asserted in letter but to link defendants to vessel and each other), cert. denied, 455 U.S. 922, 102 S.Ct. 1281, 71 L.Ed.2d 464 (1982); United States v. Arrington, 618 F.2d 1119, 1126 (5th Cir.1980) (utility bills found during search of house admissible to prove defendant resided there), cert. denied, 449 U.S. 1086, 101 S.Ct. 876, 66 L.Ed.2d 812 (1981). The prosecution, however, did not limit its use of the receipt to Patrick’s name but also relied on the address on the receipt to establish Patrick’s guilt. During closing argument, the prosecutor stated: Take, for example, an argument that might be made that that’s not his apartment, that he doesn’t live there, and that’s not his bedroom, that he doesn’t stay in that bedroom. Well, ladies and gentlemen, let’s look at a couple of things that were taken out of that bedroom. Look at government’s exhibit no. 14, the television receipt. You all had a chance to look at this closely before when it was admitted into evidence. G.A. Patrick, 818 Chesapeake Street, Southeast, Washington, D.C. 20020. Tr.T. at 513. The receipt so used constituted a statement, namely Patrick lived at 818 Chesapeake Street, Southeast, and that statement indisputably was hearsay. Unlike the use of the name on the receipt to show that an item belonging to Patrick was found in the bedroom, the prosecutor published Patrick’s address as it appeared on the receipt to prove the truth of the matter asserted, that is, the address of Patrick’s residence. Cf. United States v. Lieberman, 637 F.2d 95, 100-01 (2d Cir.1980) (hotel registration card bearing individual’s name and address not admissible to prove individual had stayed at hotel). Having concluded that the address constituted hearsay, we must determine whether its use was proper under one of the hearsay exceptions contained in rule 803. The strongest case for allowing the address to be used as it"
},
{
"docid": "3550020",
"title": "",
"text": "dismissed the hearsay challenge to that evidence, stating that “[t]he bills were not proffered to prove the truth of their contents and accordingly were admissible.” Id. at 1126. Likewise, in the present case, it is immaterial to the value of the evidence whether Patrick actually paid for the television as stated in the receipt, fabricated the receipt in order to cheat someone out of the television, or grabbed the television set and ran while the Circuit City employee was making up the receipt. The probative force of the evidence remains the same. It connects Patrick with the set and with the apartment in which it and the receipt were found. If there is any problem with the admission of the evidence, it is not one of hearsay, but of document authentication. And in fact, I submit there is no problem there either, for two reasons. First, document authentication under the Rules of Evidence is a liberal matter. “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Rule 901(a). In United States v. Sutton, 426 F.2d 1202 (D.C.Cir.1969), we noted that “the sufficiency of a showing of authenticity of a document sought to be introduced into evidence is a matter residing in the sound discretion of the trial judge.” Id. at 1207. More pertinently, we further noted that the contents of a document “conjoined with the circumstances surrounding [its] discovery” can provide an adequate basis for a ruling admitting it into evidence. Id. In that case, this notion was extended even to the authorship of a document. In the present case we need not go so far. Rather, it is at least sufficient to note that the document by its contents appears to be a receipt describing the television set bearing a particular serial number, and connecting that set with a particular named person. The evidence supporting its introduction tended to establish that police found the document in the same room as the television set at the address named"
},
{
"docid": "22998574",
"title": "",
"text": "closing argument, the government urged the conclusion that defendant lied to customers when, as a reason for not returning funds, he said that he did not possess the records. If the jury accepted the government’s evidence that (1) the records were in defendant’s possession, and (2) that, as a reason for not returning the funds, defendant told customers that the records no longer existed at his place of business, it could find that defendant intended to defraud those customers. Since this finding would not be contingent on the truth of the matters asserted in the documents, the documents were not hearsay. See, e.g., United States v. Anello, 765 F.2d 253, 261 (1st Cir.) (handwritten messages discovered in wastebasket in business of one conspirator not hearsay when offered to establish conspirators’ knowledge of each other), cert. denied, — U.S.—, 106 S.Ct. 411, 88 L.Ed.2d 361 (1985); United States v. Arrington, 618 F.2d 1119, 1126 (5th Cir.1980) (utility bills not hearsay when offered to prove residence of defendant in house searched), cert. denied, 449 U.S. 1086, 101 S.Ct. 876, 66 L.Ed.2d 812 (1981); United States v. Mejias, 552 F.2d 435, 446 (2d Cir.) (hotel receipt, luggage invoice, and travel agency business card admissible when offered to establish connection between defendant and motel where drug transactions had occurred), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115 (1977). We therefore affirm the district court’s admission of this evidence for two independent reasons. First, we hold that the records were admissible under Rule 803(6). Second, we hold that the evidence was not hearsay as defined by Rule 801(c). C. Expenditures of Corporate Funds for Personal Expenses Defendant’s next argument relates to the introduction of several FNCF checks. It was the government’s theory that defendant used the FNCF checking account to write checks totaling over $17,000 for various personal expenditures. For example, the government introduced three checks payable to VerMeulen Furniture Company totaling $5,230.35'. At trial, the credit manager of VerMeulen Furniture testified that defendant’s purchase included “two different sets of bedroom furniture, two sleepers, [and] a party set, which is a table"
},
{
"docid": "3550018",
"title": "",
"text": "the person named on the receipt has paid the obligation receipted by the document in question. Therefore, in United States v. Watkins, 519 F.2d 294 (D.C.Cir.1975), we properly held that rent receipts were in fact hearsay where they were offered for the truth of that assertion, that is, that the defendant “did in fact pay the rent” on the apartment at issue in that case. Id. at 296. In the case at bar, the receipt is a statement that Patrick paid for the television set found in the bedroom. The government did not offer the receipt for the purpose of proving the truth of that statement. It is in fact immaterial to the government’s cause whether he paid for the set or not. The receipt is offered not for the truth of the statement which it constitutes, but rather for the circumstantial value which it bears connecting Patrick with the apartment and the bedroom wherein he, the receipt and the television described were all found. In this use, therefore, the receipt is not like the rent receipt offered in Watkins for the truth of its stated contents, but rather like the letter considered by the Fifth Circuit in United States v. Mazyak, 650 F.2d 788 (5th Cir.1981). In that case involving charges of marijuana smuggling, the circuit held that the district court had properly admitted a letter addressed to all four defendants referencing their “precious cargo.” The circuit ruled that the letter was not hearsay because it was not introduced to prove the truth of the matter asserted, but rather “that the appellants were associated with each other and the boat.” Id. at 792. Similarly the receipt in the present case was offered not to prove the truth of the matter asserted (the payment of the bill), but rather the association of the defendant, the television set, and the apartment. Likewise, in United States v. Arrington, 618 F.2d 1119 (5th Cir.1980), the district court admitted utility bills directed to the defendant and found in the search of a home as evidence of his residence in that home. The circuit court"
},
{
"docid": "3549996",
"title": "",
"text": "not required to do so again before entering bedroom), it is also contradicted by the district court’s finding that “the bedroom door was open.” Memorandum Order at 3. III. We next address Patrick’s contention that the district court erred when it admitted over his hearsay objection the television sales receipt found in the bedroom. Hearsay is an oral or written statement “other than one made by the declarant while testifying at the trial ... offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). Using this definition, we examine the receipt to determine if it contained any hearsay statements and, if so, whether they were admissible under one of the hearsay exceptions of rule 803. First we consider Patrick’s name and the use of it to show that an item belonging to Patrick was found in the same bedroom where the cocaine and weapon were found. We have no difficulty in concluding that, when used for this purpose, the receipt did not constitute hearsay because it was not offered to prove the truth of any statement. Cf. United States v. Mazyak, 650 F.2d 788, 792 (5th Cir. Unit B July 1981) (letter found on board vessel smuggling narcotics addressed to defendants properly admitted not to prove truth of matters asserted in letter but to link defendants to vessel and each other), cert. denied, 455 U.S. 922, 102 S.Ct. 1281, 71 L.Ed.2d 464 (1982); United States v. Arrington, 618 F.2d 1119, 1126 (5th Cir.1980) (utility bills found during search of house admissible to prove defendant resided there), cert. denied, 449 U.S. 1086, 101 S.Ct. 876, 66 L.Ed.2d 812 (1981). The prosecution, however, did not limit its use of the receipt to Patrick’s name but also relied on the address on the receipt to establish Patrick’s guilt. During closing argument, the prosecutor stated: Take, for example, an argument that might be made that that’s not his apartment, that he doesn’t live there, and that’s not his bedroom, that he doesn’t stay in that bedroom. Well, ladies and gentlemen, let’s look at a couple of things that were taken out"
},
{
"docid": "23469557",
"title": "",
"text": "and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted, also excluded from the definition of hearsay by the language of subdivision (c). Fed.R.Evid. 801(c), Notes of the Advisory Committee on 1972 Proposed Rules (citations omitted) (emphasis added). Here, the American Express receipt and the testimony about Exhibits 18, 19, 20, 23, and 44 were introduced only to link various of the defendants together by the “circumstance” that documents bearing the names of certain defendants or the location of certain drug transactions were found in Vickie Hogg’s possession. That testimony did not depend upon the truth of the assertions contained in the documents, and consequently we conclude such evidence was not hearsay as defined by Fed.R.Evid. 801(c). D. The Cellular Phone Application and Record of Calls The defendant objects to the admission into evidence of Exhibit 24, an application for cellular phone service and record of calls under the account name Vickie Hogg. The documents were introduced to establish that Vickie Hogg had a cellular phone and that she used that phone to contact her co-conspirators in California, and to show that she travelled to, and used her cellular phone in, California. As such they were offered for the truth of the matter asserted and were hearsay. See United States v. Jefferson, 925 F.2d 1242, 1252 (10th Cir.1991) (“a receipt introduced as evidence of payment for a good or service constitutes hearsay”); see also FDIC v. Roldan Fonseca, 795 F.2d 1102, 1110 (1st Cir.1986) (money order receipts inadmissible hearsay to prove payments had been made); United States v. Watkins, 519 F.2d 294, 296-97 (D.C.Cir.1975) (receipts for rent offered to prove defendant lived at address and therefore offered for truth of matter asserted). The district court admitted the application on the grounds that it was an admission. However, this basis for introduction of the documents was error. Because the government never verified the signatures on the application, the document was improperly admitted as the admission of a party opponent. See United States v. Markopoulos, 848 F.2d 1036, 1039 (10th Cir.1988). Similarly, although"
},
{
"docid": "3550004",
"title": "",
"text": "was error to allow the receipt to be used as it was in closing argument. Finally, we consider the serial and model numbers on the receipt. In closing argument, the government used the television serial and model numbers on the receipt to link Patrick to the television found in the bedroom, arguing “That TV receipt bears a serial number, a model number. I ask you, if you so desire, ask for government’s exhibit 12, the television set ... You’ll see it appears on government’s exhibit No. 1, [indicating it was found] in the bedroom.” Tr.T. at 513. Again the receipt so used constituted a statement, namely Patrick purchased the television found in the bedroom, and was hearsay because it was offered to prove the truth of that statement. See United States v. Watkins, 519 F.2d 294, 296-97 (D.C.Cir.1975) (rent receipt inadmissible hearsay to prove defendant paid rent); see also United States v. Jefferson, 925 F.2d 1242, 1251-53 (10th Cir.) (bill for pager inadmissible hearsay when offered to prove defendant had bought pager), cert. denied, — U.S. -, 112 S.Ct. 238, 116 L.Ed.2d 194 (1991); United States v. Markopoulos, 848 F.2d 1036, 1038-39 (10th Cir.1988) (rental car contract inadmissible hearsay when offered to prove defendant had rented car containing contraband); Federal Deposit Ins. Corp. v. Roldan Fonseca, 795 F.2d 1102, 1110 (1st Cir.1986) (receipt for money orders inadmissible hearsay to prove mortgage payments). We need not repeat the reasons that this use of the receipt was improper. Without more reliable evidence that it was Patrick who bought the television, such as evidence that Circuit City’s standard practice was to verify the names provided by customers, we conclude that the district court erred in allowing the receipt to be used for this purpose. Our finding of error does not end our inquiry because we must decide whether the error was harmless. See Fed. R.Crim.P. 52(a). In deciding, we examine the “entire record,” id., Notes Of Advisory Committee On Rules 1944 Adoption, and determine “whether the error itself had a substantial influence” on the verdict. Kotteakos v. United States, 328 U.S. 750, 765,"
},
{
"docid": "3549995",
"title": "",
"text": "instead that Smith opened the apartment door and let the police in. Finally, the police had been informed that Patrick kept both narcotics and weapons in the apartment. Under such dangerous circumstances, the police must necessarily act in a speedy fashion both to protect themselves and to prevent the destruction of evidence; we will not require them “to meet with delicate exactitude the requirements of § 3109.” Harris, 435 F.2d at 83. We also reject Patrick’s argument that the police were required to knock and announce before they entered the bedroom. Not only is this argument based on a questionable view of the law, see, e.g., United States v. Remigio, 767 F.2d 730, 732 n. 2 (10th Cir.) (“Once law enforcement officials enter a house, they need not always comply with the knock and announce statute before entering every other closed door within the residence.\"), cert. denied, 474 U.S. 1009, 106 S.Ct. 535, 88 L.Ed.2d 465 (1985); United States v. Crawford, 657 F.2d 1041, 1044-45 (9th Cir.1981) (once police announced at front door, they were not required to do so again before entering bedroom), it is also contradicted by the district court’s finding that “the bedroom door was open.” Memorandum Order at 3. III. We next address Patrick’s contention that the district court erred when it admitted over his hearsay objection the television sales receipt found in the bedroom. Hearsay is an oral or written statement “other than one made by the declarant while testifying at the trial ... offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). Using this definition, we examine the receipt to determine if it contained any hearsay statements and, if so, whether they were admissible under one of the hearsay exceptions of rule 803. First we consider Patrick’s name and the use of it to show that an item belonging to Patrick was found in the same bedroom where the cocaine and weapon were found. We have no difficulty in concluding that, when used for this purpose, the receipt did not constitute hearsay because it was not offered to prove the"
},
{
"docid": "7208332",
"title": "",
"text": "evidentiary rulings, including decisions on hearsay, are reviewed for abuse of discretion. United States v. Johnson, 127 F.3d 625, 630 (7th Cir.1997). Federal Rule of Evidence 901 requires a prima facie showing of genuineness, leaving it to the jury to decide the true authenticity and probative value of evidence. United States v. Harvey, 117 F.3d 1044, 1049 (7th Cir.1997). The one exhibit that police did not seize — an envelope that said “Doris Guns” and that was identical to an envelope that had contained money used to purchase 15 semiautomatic weapons at another gun store — was authenticated by the gun dealer who received the original envelope and by the law enforcement agent to whom the gun dealer provided the envelope. The other 50 documents at issue were seized by law enforcement personnel from the person, residence, or vehicle of a coconspirator. Law enforcement officers testified about the seizure of the items and several coconspir-ators testified about the documents with which they were familiar. Many of the documents, such as utility bills, merchandise receipts, and business cards, were sufficiently distinctive to qualify as self-authenticating under Rule 901(b)(4). Harris’ claim that authentication was lacking because the actual authors of the documents did not testify is wrong. The CEO of Indianapolis Power and Light need not be called to authenticate one of the utility’s bills. The location of the documents and their substance, along with additional testimony in some instances, provided an adequate foundation for their admission. Harris’ hearsay argument is no more compelling. Most of the documents are tools of the drug trade that constitute statements made by coconspirators during the course and in furtherance of the conspiracy and thus are not hearsay under Federal Rule of Evidence 801(d)(2)(E). See United States v. Nava-Salazar, 30 F.3d 788, 798 (7th Cir.1994); United States v. De Gudino, 722 F.2d 1351, 1356 (7th Cir.1983). The remainder of the documents show the relationship of the cocon-spirators to each other or to an item seized and thus were not introduced for the truth of the matter asserted. See United States v. Guyton, 36 F.3d 655, 658"
},
{
"docid": "3550015",
"title": "",
"text": "after the suppression ruling cannot nunc pro tunc render the earlier finding clearly erroneous, especially when Patrick did not renew his motion to suppress at trial once the differing testimony was elicited. . We consider only the exceptions contained in rule 803 because the government made no showing that the declarant (presumably the sales clerk who filled out the receipt) was unavailable to testify. . We, unlike the dissent, do not find the holding in United States v. Watkins, 519 F.2d 294 (D.C.Cir.1975), distinguishable. In Watkins, the defendant was charged with possession with intent to distribute based on drugs found in the apartment where she was arrested. We held that a rent receipt in Watkins' name for that apartment was hearsay when offered \"to show who was paying for the apartment and who was living there.” 519 F.2d at 296-97. Here, the prosecutor similarly used the address on the sales receipt to prove Patrick lived at the apartment. . In Lieberman, the court upheld the admissibility of the hotel registration card to show that someone using the name on the receipt had registered at the hotel. 637 F.2d at 101. Here, however, at this point in its closing argument. the government did not seek to use the receipt to show that someone claiming to be Patrick and to reside at 818 Chesapeake Street had purchased a television. Rather, the government used the receipt to prove that Patrick resided at that address. See infra p. 1002. .At trial the government argued that the receipt “would fit into the exception which admits hearsay which is generally reliable.” Tr.T. at 270. We take this to be a reference to the residual exception in rule 803(24). Rule 803(24), however, requires, among other things, that \"the statement [be] more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.” Id. The government made no such showing. . To make clear to the jury that it could consider the receipt only for the limited purpose of showing that a document bearing Patrick’s name had been"
},
{
"docid": "23469551",
"title": "",
"text": "introduced as evidence of payment for a good or service constitutes hearsay”); see also FDIC v. Roldan Fonseca, 795 F.2d 1102, 1110 (1st Cir.1986) (money order receipts inadmissible hearsay to prove payments had been made); United States v. Watkins, 519 F.2d 294, 296-97 (D.C.Cir.1975) (receipts for rent offered to prove defendant lived at address and therefore offered for truth of matter asserted). Exhibits 6(D)-(I) were introduced by the government through an employee of Western Union. The Western Union district manager testified the records were kept in the ordinary course of business. He also testified that although no identification was required to send money, identification would be required to pick up the money under the circumstances of these transfers. The defendant objected that, because the documents were being offered to prove the identities of senders and recipients of money, and there was no attempt by Western Union to verify the identities of the senders and recipients, the business records exception did not apply. The district court admitted the documents finding that the objection was “appropriate for cross examination. It goes to the credibility of the exhibit and the witness. But, not to its admissibility.” This decision was partially in error. Because Western Union did not havE a policy of verifying the identity of senders, and because it is apparent from the testimony brought out at trial that senders could easily use aliases, the documents were inadmissible to prove the identity of senders of money. See United States v. Bland, 961 F.2d 123, 126-27 (9th Cir.) (registration form for handgun purchase was business record because identity of registrant was verified), cert. denied, — U.S. -, 113 S.Ct. 170, 121 L.Ed.2d 117 (1992); United States v. Patrick, 959 F.2d 991, 1000-02 (D.C.Cir.1992) (receipt not business record to show purchaser identity because no showing that purchaser identity was verified); United States v. Zapata, 871 F.2d 616, 625-26 (7th Cir.1989) (hotel registration was a business record because standard practice of hotel was to verify guest’s identity); United States v. Lieberman, 637 F.2d 95, 101 (2d Cir.1980) (hotel registration not business record because no evidence that"
},
{
"docid": "3549998",
"title": "",
"text": "of that bedroom. Look at government’s exhibit no. 14, the television receipt. You all had a chance to look at this closely before when it was admitted into evidence. G.A. Patrick, 818 Chesapeake Street, Southeast, Washington, D.C. 20020. Tr.T. at 513. The receipt so used constituted a statement, namely Patrick lived at 818 Chesapeake Street, Southeast, and that statement indisputably was hearsay. Unlike the use of the name on the receipt to show that an item belonging to Patrick was found in the bedroom, the prosecutor published Patrick’s address as it appeared on the receipt to prove the truth of the matter asserted, that is, the address of Patrick’s residence. Cf. United States v. Lieberman, 637 F.2d 95, 100-01 (2d Cir.1980) (hotel registration card bearing individual’s name and address not admissible to prove individual had stayed at hotel). Having concluded that the address constituted hearsay, we must determine whether its use was proper under one of the hearsay exceptions contained in rule 803. The strongest case for allowing the address to be used as it was is that it was part of a record of regularly conducted activity under rule 803(6) (business records exception). Fed.R.Evid. 803(6). We first note that the address on the receipt reflects not only the assertion of the Circuit City employee who made out the receipt but also the assertion of the customer who provided the address. The address was thus hearsay within, hearsay, see Fed. R.Evid. 805, and was not admissible to prove Patrick’s residence unless both the customer’s statement and the employee’s recording of it were admissible. See United States v. Baker, 693 F.2d 183, 188 (D.C.Cir.1982) (“Double hearsay exists when a business record is prepared by one employee from information supplied by another”; “[an] outsider’s statement must fall within another hearsay exception to be admissible because it does not have the presumption of accuracy that statements made during the regular course of business have.”); see also Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 271 (5th Cir.1991) (“Rule 803(6) does not, by itself, permit the admission of [a] business record” when the “source"
},
{
"docid": "3550017",
"title": "",
"text": "found in the bedroom, the district court should have redacted the references to Patrick’s address and the serial and model numbers or, at a minimum, given a limiting instruction. Although counsel and the court discussed these alternatives before the receipt was admitted, the court did neither. Tr.T. at 264-71. SENTELLE, Circuit Judge, concurring in part and dissenting from the judgment: While I completely concur in the opinion of the Court as to the motion to suppress, I respectfully dissent from the Court’s conclusion that the television receipt was improperly admitted into evidence, and therefore, I dissent from the judgment reversing Patrick’s conviction. In my view, the receipt was not offered as hearsay, and therefore did not need to come within any exception to the hearsay rule. The Federal Rules of Evidence codify a classic definition of hearsay. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c). A receipt is a statement that the person named on the receipt has paid the obligation receipted by the document in question. Therefore, in United States v. Watkins, 519 F.2d 294 (D.C.Cir.1975), we properly held that rent receipts were in fact hearsay where they were offered for the truth of that assertion, that is, that the defendant “did in fact pay the rent” on the apartment at issue in that case. Id. at 296. In the case at bar, the receipt is a statement that Patrick paid for the television set found in the bedroom. The government did not offer the receipt for the purpose of proving the truth of that statement. It is in fact immaterial to the government’s cause whether he paid for the set or not. The receipt is offered not for the truth of the statement which it constitutes, but rather for the circumstantial value which it bears connecting Patrick with the apartment and the bedroom wherein he, the receipt and the television described were all found. In this use, therefore, the receipt is not like the"
},
{
"docid": "389704",
"title": "",
"text": "to be given to the jury. See United States v. Snow, 517 F.2d 441, 443-44 (9th Cir. 1975) (name tape which was affixed to case in which gun was found and which bore defendant’s name was not hearsay and was properly admitted to show that defendant knowingly possessed the unregistered weapon; name tape treated as circumstantial evidence and deemed relevant); Hiram v. United States, 354 F.2d 4, 7 (9th Cir. 1965) (newspaper article describing bank robbery and naming certain person as robber was not inadmissible as hearsay in prosecution on charge of being accessory after the fact to bank robbery, where article was not offered for truth of matter stated therein but only to show notice to defendant of the robbery and of named person’s alleged participation therein); United States v. Mishkin, 317 F.2d 634, 637 (2d Cir.), cert. denied, 375 U.S. 827, 84 S.Ct. 71, 11 L.Ed.2d 60 (1963) (slips of paper, which had unpublished telephone number of defendant and his first name on them, and which were found in wallet of alleged coconspirator when he attempted to pick up obscene books from subway locker, were not inadmissible hearsay, since slips were admitted not to prove defendant’s telephone number and connection with the bookstore, but as part of proof that codefendant had received the key to subway locker from defendant). . In Watkins, appellant was charged with various drug violations. A search of a room in which appellant and others were present at the time turned up drugs, drug-related paraphernalia, large amounts of cash, and three receipts indicating that appellant had paid the rent on the apartment for two months and had paid for utility service in another month. 171 U.S.App.D.C. at 159-60, 519 F.2d at 295-96. Against the Government’s contention that the documents were tendered not for the truth of their contents but rather to show they were found in the bedroom occupied by appellant on the day in question, the court noted the rule that “receipts are hearsay as independent evidence of the making of payment” and found the receipts inadmissible, as “a principal, if not the"
},
{
"docid": "23469595",
"title": "",
"text": "Fed.R.Evid. 901. Darren Hogg testi- fied that he was present when all of the transfers were made. The court properly admitted Exhib- its 6(A)-(C) as non-hearsay. Fed.R.Evid. 801(c). Fed.R.Evid. 801(c). . When considering the evidence in camera, the court stated: The fact that in someone's home is something that links him to another address, it's hot saying anything. It's not being offered to prove the truth of the matter asserted. It is just the fact that it is there. The same as — I believe there is a rent receipt in regard to Vickie Hogg on another address. And'you want to offer that to show that she had leased that other address. Well, I think that’s hearsay if it is offered to prove that she, in fact, rented a certain address. But, if you want to offer it, just have your investigator say, we found documents in her house which have that address on them. In other words, linking her to that address. Also, I think there was a document in her house maybe with the name J.C. Chatman on it. I think that just the fact that she has a document or a piece of paper with J.C. Chat-man's name on it is admissible. Again, it’s not offered to prove the truth of the matter asserted. It is just the fact that she has his name. I think it is admissible against both of them for whatever use the jury wants to make of it. But, the documents themselves would not come in. R. Vol. VIII at 5-6. . The phrase \"circumstantial evidence” is a bit misleading. Just because evidence is introduced circumstantially, rather than directly to prove a fact, has no bearing on whether the evidence itself is hearsay. As we noted in United States v. Jefferson, 925 F.2d 1242, 1252-53 (10th Cir.(10th Cir.1991) [wjhether evidence is offered as circumstantial evidence as opposed to direct evidence has nothing to do with whether it constitutes inadmissible hearsay.... the fact that the evidence was introduced to link circumstantially the accused to the crime does not render the hearsay violation any"
},
{
"docid": "23469558",
"title": "",
"text": "and that she used that phone to contact her co-conspirators in California, and to show that she travelled to, and used her cellular phone in, California. As such they were offered for the truth of the matter asserted and were hearsay. See United States v. Jefferson, 925 F.2d 1242, 1252 (10th Cir.1991) (“a receipt introduced as evidence of payment for a good or service constitutes hearsay”); see also FDIC v. Roldan Fonseca, 795 F.2d 1102, 1110 (1st Cir.1986) (money order receipts inadmissible hearsay to prove payments had been made); United States v. Watkins, 519 F.2d 294, 296-97 (D.C.Cir.1975) (receipts for rent offered to prove defendant lived at address and therefore offered for truth of matter asserted). The district court admitted the application on the grounds that it was an admission. However, this basis for introduction of the documents was error. Because the government never verified the signatures on the application, the document was improperly admitted as the admission of a party opponent. See United States v. Markopoulos, 848 F.2d 1036, 1039 (10th Cir.1988). Similarly, although the District Client Service Supervisor for Cellular One testified that the documents were kept in the regular course of business, there was no evidence that there was a policy requiring customers to show identification when signing up for the service. In fact, the Cellular One employee admitted that anyone could have opened this account under the name Vickie Hogg. Furthermore, the application was not taken by a Cellular One employee, but rather by an independent contractor. Accordingly, we find that it was error to admit the document as a business record under Fed.R.Evid. 803(6). See United States v. Patrick, 959 F.2d 991, 1000-02 (D.C.Cir.1992); United States v. Lieberman, 637 F.2d 95, 101 (2d Cir.1980); cf. United States v. Bland, 961 F.2d 123, 126-27 (9th Cir.1992); United States v. Zapata, 871 F.2d 616, 625 (7th Cir.1989). This does not end our analysis, however, because we must determine whether this error was harmless. In determining whether a particular error is harmless, there are two standards of review: the nonconsti-tutional harmless error standard of review pursuant to Fed.R.Crim.P."
},
{
"docid": "3550019",
"title": "",
"text": "rent receipt offered in Watkins for the truth of its stated contents, but rather like the letter considered by the Fifth Circuit in United States v. Mazyak, 650 F.2d 788 (5th Cir.1981). In that case involving charges of marijuana smuggling, the circuit held that the district court had properly admitted a letter addressed to all four defendants referencing their “precious cargo.” The circuit ruled that the letter was not hearsay because it was not introduced to prove the truth of the matter asserted, but rather “that the appellants were associated with each other and the boat.” Id. at 792. Similarly the receipt in the present case was offered not to prove the truth of the matter asserted (the payment of the bill), but rather the association of the defendant, the television set, and the apartment. Likewise, in United States v. Arrington, 618 F.2d 1119 (5th Cir.1980), the district court admitted utility bills directed to the defendant and found in the search of a home as evidence of his residence in that home. The circuit court dismissed the hearsay challenge to that evidence, stating that “[t]he bills were not proffered to prove the truth of their contents and accordingly were admissible.” Id. at 1126. Likewise, in the present case, it is immaterial to the value of the evidence whether Patrick actually paid for the television as stated in the receipt, fabricated the receipt in order to cheat someone out of the television, or grabbed the television set and ran while the Circuit City employee was making up the receipt. The probative force of the evidence remains the same. It connects Patrick with the set and with the apartment in which it and the receipt were found. If there is any problem with the admission of the evidence, it is not one of hearsay, but of document authentication. And in fact, I submit there is no problem there either, for two reasons. First, document authentication under the Rules of Evidence is a liberal matter. “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to"
},
{
"docid": "3550003",
"title": "",
"text": "driver’s license, or other form of identification.’ ” Id. (quoting Lieberman, 637 F.2d at 101). Because the hotel’s executive assistant manager testified that it was a “standard practice” to verify the information provided by a registering guest, the court in Zapata held that the records were admissible. In Lieberman, the Second Circuit adopted a similar approach. See 637 F.2d at 101 (“[I]f ... verification is obtained by the employee, we see no reason why the guest card that has been filled in by the guest himself would not qualify as a business record and thus be admissible for the truth of its statements.”). We think the reasoning of Zapata and Lieberman applies to our facts. Accordingly, in deciding whether the receipt was properly admitted, we do not require that Patrick be under a business duty to provide the information. Rather, it is sufficient if it is shown that Circuit City’s standard practice was to verify the information provided by a customer. Because we do not know if this was the case, we conclude that it was error to allow the receipt to be used as it was in closing argument. Finally, we consider the serial and model numbers on the receipt. In closing argument, the government used the television serial and model numbers on the receipt to link Patrick to the television found in the bedroom, arguing “That TV receipt bears a serial number, a model number. I ask you, if you so desire, ask for government’s exhibit 12, the television set ... You’ll see it appears on government’s exhibit No. 1, [indicating it was found] in the bedroom.” Tr.T. at 513. Again the receipt so used constituted a statement, namely Patrick purchased the television found in the bedroom, and was hearsay because it was offered to prove the truth of that statement. See United States v. Watkins, 519 F.2d 294, 296-97 (D.C.Cir.1975) (rent receipt inadmissible hearsay to prove defendant paid rent); see also United States v. Jefferson, 925 F.2d 1242, 1251-53 (10th Cir.) (bill for pager inadmissible hearsay when offered to prove defendant had bought pager), cert. denied, —"
}
] |
705558 | contentions relating to the grand jury transcripts are without merit under our present decisions and we decline to adopt the views that are urged. 5. Voir dire of the jury Addington says that the trial court erred by refusing to permit his counsel to voir dire the prospective jurors himself, and that he was thereby denied the effective assistance of counsel. He argues that the court merely gave a narrative statement to the prospective jurors and elicited general affirmative or negative answers to qualify them, denying the opportunity for a proper voir dire. Rule 24(a), Fed.R.Crim.P., gives the trial court discretion as to whether to permit voir dire examination of prospective jurors by counsel or to conduct the examination itself. REDACTED ; see also Brundage v. United States, 365 F.2d 616 (10th Cir.). Here the trial court denied the request by defense counsel that he be permitted to question the prospective jurors directly and the court instead chose to conduct the examination, in accordance with the customary practice in this Circuit. See Brundage v. United States, supra at 618. The record shows that defense counsel was permitted to submit questions for the prospective jurors to the court, and we feel there was no abuse of discretion in the questioning as conducted. Furthermore defense counsel advised the court on several occasions that he had no further questions to submit on the matters being covered. Adding-ton points to no specific inquiry that should have been | [
{
"docid": "16350001",
"title": "",
"text": "HEANEY, Circuit Judge. Michael Allen Mattin was convicted of refusing to register for military training and service as required by 50 App. U.S.C. § 453. The only issue raised on appeal concerns the conduct and scope of the voir dire examination. The defendant contends that the trial court abused its discretion: (1) by refusing to allow the defense counsel to conduct the examination; and, alternatively, (2) by refusing to ask specific questions, designated by the defense counsel, in the course of the examination. We find no abuse of discretion. I. Prior to the trial, the defense counsel filed a motion requesting that he be allowed to conduct the voir dire himself. The trial court denied the motion stating that it was more appropriate for the court to do so. The court’s decision to conduct the voir dire examination himself is clearly authorized by Rule 24(a) of the Federal Rules of Criminal Procedure: “The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. * * *” and by decisions of this Court. See, Ross v. United States, 374 F.2d 97 (8th Cir.), cert. denied, 389 U.S. 882, 88 S.Ct. 130, 19 L.Ed.2d 177 (1967). II. Included in the defendant’s motion was an alternate request that twenty specific questions be asked of the jurors. The court stated that it would honor most of the requests at least in substance. After conducting an extensive voir dire, the court recessed to inquire whether counsel wanted additional questions asked. Defense counsel again requested that the following questions be asked of jurors who had served in the Armed Forces and of jurors who had relatives who had served in the Armed Forces: «4_ * * * “a. In what branch of the armed services was the service? “b. When was the service? “c. Was the service during the Viet Nam war? “d. Was the service during the Korean war? “e. Was the service during World War I? “f. Was the service during World War II? “g. Did you"
}
] | [
{
"docid": "16653772",
"title": "",
"text": "at the Juvenile Receiving Home by appellant and appellant’s alleged companion, one Belton, who had turned himself in and was retained within the jurisdiction of the Juvenile Court. Belton testified for the defense that he alone had made the assault and gone through Hayes’ pockets. Appellant’s testimony in his own behalf was substantially to the same effect. The complainant, Hayes, was not produced by the Government, although personally served; a stipulation of his Grand Jury testimony was read to the trial jury. (D The trial judge elected to conduct the voir dire examination of the jury pursuant to Fed.R.Crim.P. 24(a): “The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper.” Appellant requested that the District Judge make the following query on voir dire: “Would you give greater credence to the testimony of a law enforcement officer merely because he is an officer as compared to any other witness.” Although the trial court possesses a “broad discretion as to the questions to be asked” on voir dire, the exercise of that discretion is “subject to the essential demands of fairness.” Aldridge v. United States, 283 U.S. 308, 310, 51 S.Ct. 470, 471, 75 L.Ed. 1054 (1931). In Sellers v. United States, this court held to be reversible error the District Court’s failure to ask on voir dire, when requested, whether any juror would be “ * * * inclined to give more weight to the testimony of a police officer merely because he is a police officer than any other witness * * (Emphasis added.) 106 U.S.App.D.C. 209, 210, 271 F.2d 475, 476 (1959) (per curiam). Accord, Chavez v. United States, 258 F.2d 816, 819 (10th Cir. 1958) (dictum), cert. denied"
},
{
"docid": "23596543",
"title": "",
"text": "over the jury’s decision-making [are] minuscule.” Id. Our cases indicate that whether a district court abuses its discretion in declining to voir dire a jury following mid-trial publicity depends on the specific circumstances of the case. Under the circumstances here, the district court was within its discretion to decline to voir dire the jury and a new trial is not warranted on this ground. 4. Attorney-directed voir dire Finally, Rasco argues that he was deprived of a fair trial because the district court denied his motion for full attorney-directed voir dire. We review the manner in which the district court conducts voir dire for clear abuse of discretion. United States v. Rowe, 106 F.3d 1226, 1227 (5th Cir.1997). Rasco claims that examination of potential jurors by defense counsel would have revealed that some of the jurors had knowledge of Rasco’s criminal history as a result of media publicity. Rasco’s counsel, however, suggested at the conclusion of jury selection that the court could handle the publicity issue “in the back room quietly with no problem,” and stated that admonishing the jury to ignore any information that they might have been exposed to was “what we would have done on voir dire anyway.” Furthermore, the requested jury questions that defense counsel submitted to the court before voir dire did not specifically inquire into exposure to media publicity. The tidal court has broad discretion to determine who will question potential jurors and what questions will be asked. Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 1634-35, 68 L.Ed.2d 22 (1981). Rule 24(a) of the Federal Rules of Criminal Procedure provides: The court may permit the defendant or the defendant’s attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or the defendant’s attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it"
},
{
"docid": "8015222",
"title": "",
"text": "from this base, appellant’s counsel contended at the trial that the elements of knowledge and intent had not been established beyond a reasonable doubt. In order for the jurors to have agreed with him, it would have been necessary for them to have accepted Kreuter’s story to the agents as true. Apparently, the jurors did not believe it. Appellant now raises four points on appeal. His first complaint is that the trial court was unduly restrictive in his voir dire examination of the jury panel. As permitted by Rule 24(a), Federal Rules of Criminal Procedure, the court conducted the examination of the prospective jurors. While the court embodied the substance of many of appellant’s requests in the questions propounded by him, none were asked in the form requested. The purpose of the voir dire examination is to determine whether the veniremen are qualified, whether they have prejudged the case, and whether their minds are free from prejudice or bias so as to enable the parties to ascertain whether a cause for challenge exists and to ascertain whether it is expedient to exercise the right of peremptory challenge. 50 C.J.S. Juries § 273, p. 1036. The extent of the inquiry must be left to the sound discretion of the trial court. Maguire v. United States, 358 F.2d 442, 10 Cir. The exercise of that discretion should not be interfered with unless it is clearly abused. United States v. Lebron, 222 F.2d 531, 2 Cir., cert. denied, 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774; United States v. Dennis, 183 F.2d 201, 227, 2 Cir. While the voir dire examination might have been more searching, it was sufficient to test the qualifications and competency of the prospective jurors to try the case. Brundage v. United States, 365 F.2d 616, 10 Cir. We perceive no prejudice to appellant and cannot say that the trial court’s discretion was abused. Appellant next attacks the trial court’s instructions on criminal intent and on the inference which might permissibly be drawn from flight and concealment, contending that these instructions unduly emphasized circumstantial evidence when read in"
},
{
"docid": "21580990",
"title": "",
"text": "was upheld in O’Dris-coll. Inasmuch as O’Driscoll is the law of the Tenth Circuit, we decline to hold that Berryhill’s sentence was illegal. II. Berryhill contends that the court erred in failing to adequately voir dire prospective jurors. Berryhill argues that the traditional method of eliciting information from potential jurors, and the method utilized in this case, i.e., a series of questions requiring a “yes” or “no” answer, gives rise to a perfunctory examination of prospective jurors which does not provide sufficient information to intelligently exercise peremptory challenges. Berryhill argues that it is essential to supplement the court’s examination with “at least some attorney questioning — for the intelligent exercise of jury challenges.” While acknowledging that his counsel did not request attorney-conducted voir dire, Berryhill nonetheless contends that he was forced to rely on the court’s voir dire. The government responds that the court did not err in its voir dire and that Berry-hill’s arguments in this regard are frivolous. The government cites to United States v. Hall, 536 F.2d 313, 324 (10th Cir.), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285 (1976) for the rule that it is the practice in this circuit for the court to ask the voir dire questions; that conduct of voir dire is within the discretion of the district court; and that the court’s exercise of that discretion will not be disturbed unless there is a clear showing of abuse. The government also argues that, inasmuch as defense counsel did not request attorney conducted voir dire during trial, Berryhill cannot raise this issue for the first time on appeal. The conduct of voir dire is within the sound discretion of the trial judge, United States v. Sutton, 732 F.2d 1483, 1493 (10th Cir.1984), cert. denied, 469 U.S. 1157, 105 S.Ct. 903, 83 L.Ed.2d 919 (1985), and this discretion will not be disturbed absent a clear showing of abuse. United States v. Lambinus, 747 F.2d 592, 598 (10th Cir.1984), cert. denied, 471 U.S. 1067, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985). We have carefully reviewed the trial court’s voir dire. Nothing in"
},
{
"docid": "4000734",
"title": "",
"text": "the views that are urged. 5. Voir dire of the jury Addington says that the trial court erred by refusing to permit his counsel to voir dire the prospective jurors himself, and that he was thereby denied the effective assistance of counsel. He argues that the court merely gave a narrative statement to the prospective jurors and elicited general affirmative or negative answers to qualify them, denying the opportunity for a proper voir dire. Rule 24(a), Fed.R.Crim.P., gives the trial court discretion as to whether to permit voir dire examination of prospective jurors by counsel or to conduct the examination itself. United States v. Mattin, 419 F.2d 1086 (8th Cir.); see also Brundage v. United States, 365 F.2d 616 (10th Cir.). Here the trial court denied the request by defense counsel that he be permitted to question the prospective jurors directly and the court instead chose to conduct the examination, in accordance with the customary practice in this Circuit. See Brundage v. United States, supra at 618. The record shows that defense counsel was permitted to submit questions for the prospective jurors to the court, and we feel there was no abuse of discretion in the questioning as conducted. Furthermore defense counsel advised the court on several occasions that he had no further questions to submit on the matters being covered. Adding-ton points to no specific inquiry that should have been made and was omitted and thus shows no prejudice. See United States v. Williams, 417 F.2d 630 (10th Cir.). We believe that the voir dire examination revealed by the record in no way denied the “essential demands of fairness,” United States v. Williams, supra at 631, and did not deprive Addington of the effective assistance of counsel. We are satisfied that no reversible error is shown in these respects. The record reveals a fair trial and no reversible error is demonstrated. Accordingly, the judgment is affirmed. . Addington’s brief specifies the attack on the Government proof by questioning whether it sufficiently established the following points: “1. That at material times, the Defendant knew of the shortages. “2. That at"
},
{
"docid": "22766863",
"title": "",
"text": "weigh equally the testimony of a police officer and the testimony of a civilian. Based on the potential juror’s candid admission, the district court excused him. Howell’s counsel requested to ask the potential juror questions, but the district court refused. Howell contends that the district court erred in excusing the prospective juror because: (1) the juror’s statements did not justify his removal for cause; and (2) once the court allowed the government to question the potential juror, it should have afforded Howell a similar opportunity to ask questions. B. Analysis We review a district court’s actions during the voir dire process for an abuse of discretion. See United States v. Milner, 962 F.2d 908, 911 (9th Cir.1992). The function of the voir dire is to ferret out prejudices in the venire that threaten the defendant’s Sixth Amendment right to a fair and impartial jury. See Mu’Min v. Virginia, 500 U.S. 415, 431, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). Federal Rule of Criminal Procedure 24(a) furthers this purpose by permitting a trial judge to conduct an examination of prospective jurors, during which “the court shall permit the defendant or the defendant’s attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper.... ” Fed.R.Crim.P. 24(a). Whether to allow supplemental questions proposed by counsel is within the “sound judicial discretion” of the district court. United States v. Baldwin, 607 F.2d 1295, 1297 (9th Cir.1979). The district court did not violate this standard. Howell’s contention that the potential juror’s answers did not justify removal for cause is untenable. The trial judge’s obligation to “excuse a prospective juror if actual bias is discovered,” United States v. Allsup, 566 F.2d 68, 71 (9th Cir.1977), not only supported the district court’s decision to excuse the potential juror, but necessitated it. Similarly, Howell’s argument that the district court violated Federal Rule of Criminal Procedure 24(a) by allowing the government, but not the defense, to question the potential juror is without merit. No case law supports his claim. Moreover, despite the fact that under Federal Rule of Criminal Procedure"
},
{
"docid": "6715992",
"title": "",
"text": "ALAN E. NORRIS, Circuit Judge. Defendant, Michael Fish, appeals his conviction for unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1), and the enhancement of his sentence under 18 U.S.C. § 924(e)(1). He argues that the district court, 726 F.Supp. 156, erred by improperly conducting voir dire, denying his motion for judgment of acquittal where the government did not prove an interstate nexus, and enhancing his sentence pursuant to the Armed Career Criminal Act. For the reasons that follow, we affirm. I. Voir Dire Defendant first contends that the district court erred by refusing to use written questions submitted by defense counsel when the court questioned prospective jurors. The questions would have explored the jurors’ past experiences with firearms and their opinions concerning the right of any individual to own firearms. Trial judges enjoy considerable discretion in determining the questions to be asked in voir dire. United States v. Blount, 479 F.2d 650, 651 (6th Cir.1973); see also Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (“the adequacy of voir dire is not easily subject to appellate review”). Judges need not use every question submitted by counsel; they need only use those to which an anticipated response would afford the basis for a challenge for cause. After explaining that the defendant had been charged with a firearms-related offense, the court asked prospective jurors whether they or any of their friends or relatives had ever had any involvement in a similar type of case. The court also inquired into general prejudices, biases, and interests. Those questions elicited numerous responses pertaining to firearms. The judge then permitted counsel to further question the jurors and, when one voiced opposition to firearms’ ownership, the court dismissed that juror for cause. The trial court declined counsel’s request that he explore prospective jurors’ “general attitudes towards firearms,” since inquiring into a juror’s attitude toward conduct that is criminalized would not assist in selecting an impartial jury. The judge also noted that the questions which were asked elicited sufficient information to serve as the"
},
{
"docid": "23221741",
"title": "",
"text": "his counsel the opportunity to voir dire, overruling this Rule 24(a), F.R.Crim.P., motion and refusing to give some of the requested questions. Appellant asserts the denial of voir dire by counsel prevented him and his counsel from determining whether the prospective jurors were free from prejudice or bias. Rule 24(a) allows the court itself to conduct the voir dire provided the defendant or his attorney and the government’s attorney are permitted to supplement the examination by further proper inquiry or are allowed to submit additional questions which the court itself shall submit to the jurors as the court deems proper. “The court’s discretion under this rule will not be disturbed, unless it appears from the record that its voir dire was inadequate to properly test the qualifications and competency of the prospective jurors to sit on trial of the case.” Brundage v. United States, 365 F.2d 616 (10th Cir. 1966). The trial judge propounded many questions to the prospective jurors. Our review of the record convinces us the voir dire was adequate to test the qualifications and competency of the jurors. Appellant has not pointed to any specific inquiry which should have been made but was omitted; we find no prejudice to appellant in the manner and the extent of voir dire. United States v. Addington, 471 F.2d 560 (10th Cir. 1973). Appellant argues the trial court indicated to the jury the accused was guilty and therefore deprived appellant of a fair trial or the presumption of innocence. As mentioned earlier, the appellant erupted into a long harangue just prior to a noon recess. Much of the tirade included personal attacks on the court. After repeatedly asking the appellant if he were finished, the court had the appellant removed from the courtroom by the marshals present. The court immediately instructed the jury they should not permit themselves to be influenced by this outburst. The court said in part, “This is not evidence. Ignore what he has said. He is highly emotional this morning. . . . It is not proper and you will not allow yourselves to be influenced by"
},
{
"docid": "23221740",
"title": "",
"text": "concerning hybrid representation. As noted in Swinton, . Faretta ratified a consensus within the federal judiciary favoring a constitutional right to pro se status; that consensus has existed side by side with another finding that a defendant’s appearance as co-counsel lies within the discretion of the trial court. The Sixth Amendment does not give any indication that hybrid representation is a right of constitutional dimensions. Title 28 U.S.C. § 1654 is written in the disjunctive— “parties may . . . conduct their own cases personally or by counsel . . ..” Thus no statutory right of hybrid representation is accorded. Finally, although not raised by appellant, we cannot say the trial court abused its discretion in denying hybrid representation in this case. The trial court did not err in denying appellant’s request(s) for hybrid representation. By another motion, appellant sought permission for his counsel to conduct the voir dire; if this request were denied, appellant wanted the court to ask some specific questions of the prospective jurors. Appellant argues the trial court erred in denying his counsel the opportunity to voir dire, overruling this Rule 24(a), F.R.Crim.P., motion and refusing to give some of the requested questions. Appellant asserts the denial of voir dire by counsel prevented him and his counsel from determining whether the prospective jurors were free from prejudice or bias. Rule 24(a) allows the court itself to conduct the voir dire provided the defendant or his attorney and the government’s attorney are permitted to supplement the examination by further proper inquiry or are allowed to submit additional questions which the court itself shall submit to the jurors as the court deems proper. “The court’s discretion under this rule will not be disturbed, unless it appears from the record that its voir dire was inadequate to properly test the qualifications and competency of the prospective jurors to sit on trial of the case.” Brundage v. United States, 365 F.2d 616 (10th Cir. 1966). The trial judge propounded many questions to the prospective jurors. Our review of the record convinces us the voir dire was adequate to test the"
},
{
"docid": "13635572",
"title": "",
"text": "to the prospective jurors such additional questions by the parties or their attorneys as it deems proper.” Examination by the Court is authorized by said Rule and is proper in the absence of an abuse of discretion. United States v. DePugh, 452 F.2d 915 (Tenth Cir. 1971); Kreuter v. United States, 376 F.2d 654 (Tenth Cir. 1967) cert. den. 390 U.S. 1015, 88 S.Ct. 1267, 20 L.Ed.2d 165. This Court follows the custom of the trial judges in the Tenth Circuit in conducting the voir dire examination itself. Brundage v. United States, 365 F.2d 616 (Tenth Cir. 1966); United States v. Addington, 471 F.2d 560 (Tenth Cir. 1973). In Brundage v. United States, supra, then Chief Judge Murrah stated: “In this jurisdiction voir dire is customarily conducted by the trial judge and it is his responsibility to probe the minds of the prospective jurors concerning their precognitions, predilections, experiences and any other matters which may peculiarly bear upon their qualifications and competency to serve fairly and impartially in the particular case.” In the instant case, the Court in its discretion will conduct the voir dire examination of prospective jurors itself and the Motion to Permit Attorneys for Defendant to Examine Jurors is denied. It is so ordered this 22d day of February, 1975. ON MOTION TO DISQUALIFY After having been convicted by a jury of four crimes but before Court rulings on post-conviction Motions and being sentenced by the Court, Defendant Hall has filed a Motion with Affidavit requesting the Judge presiding over his trial to now disqualify himself from further proceedings in the matter. Defendant Hall proceeds under 28 U.S.C. § 144, 28 U.S.C. § 455, and Rule 25, Federal Rules of Criminal Procedure. It appears to be Defendant Hall’s contention that the Motion should be granted on the basis of three assertions as follows: (1) The Judge agreed to disqualify before the trial but did not do so. (2) The Judge became hostile toward this Defendant’s counsel on March 14, 1975, after the case had been submitted to the jury, and, (3) The Judge must judge the truth"
},
{
"docid": "13635571",
"title": "",
"text": "Motion to Permit Attorneys for Defendant to Examine Jurors. Said Motion is supported by a Brief. Counsel for Defendant Taylor has advised the Court verbally that he adopts said Motion. The Court thus considers the Motion by both Defendants. The thrust of Defendants’ argument is that the requested examination is necessary in the interest of a fair and impartial trial and due process. They assert that a more searching inquiry is necessary to determine if actual bias or prejudice exists in the minds of the jurors. Other reasons are urged which are generally repetitious. The conduct of voir dire examination is governed by Rule 24(a), Federal Rules of Criminal Procedure which provides: “The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper.” Examination by the Court is authorized by said Rule and is proper in the absence of an abuse of discretion. United States v. DePugh, 452 F.2d 915 (Tenth Cir. 1971); Kreuter v. United States, 376 F.2d 654 (Tenth Cir. 1967) cert. den. 390 U.S. 1015, 88 S.Ct. 1267, 20 L.Ed.2d 165. This Court follows the custom of the trial judges in the Tenth Circuit in conducting the voir dire examination itself. Brundage v. United States, 365 F.2d 616 (Tenth Cir. 1966); United States v. Addington, 471 F.2d 560 (Tenth Cir. 1973). In Brundage v. United States, supra, then Chief Judge Murrah stated: “In this jurisdiction voir dire is customarily conducted by the trial judge and it is his responsibility to probe the minds of the prospective jurors concerning their precognitions, predilections, experiences and any other matters which may peculiarly bear upon their qualifications and competency to serve fairly and impartially in the particular case.” In the instant case,"
},
{
"docid": "23452407",
"title": "",
"text": "S.Ct. 1059, 13 L.Ed.2d 957 (1965) is relied on, but it is not germane, for in that case coercion with respect to arrival of the verdict was exercised toward the entire group. Nor does Goff v. United States, 446 F.2d 623 (10th Cir. 1971) support the defendants. Similarly, Burroughs v. United States, 365 F.2d 431 (10th Cir. 1966) is entirely distinguishable. In short, the trial court was careful and conscientious in dealing with a most difficult problem. We perceive no error. III. PREJUDICIAL PUBLICITY? Hall argues that the trial court did not take appropriate measures to counteract the allegedly prejudicial publicity which appeared prior to his trial. While he urges that the court’s denial of his motions for continuance or transfer and for sequestration of the jury during the trial was error, his argument comes down to the adequacy of the voir dire of the prospective jurors by the trial judge. Hall contends that the court erred in refusing to allow counsel to ask the questions, in not asking all of the questions proposed by appellant, and in not questioning the jurors individually with regard to the publicity. He further contends that the voir dire as conducted by the court was inadequate. Either the court or counsel may ask questions on voir dire, Fed.R.Crim.P. 24(a), and it is the practice in this Circuit for the court to ask the questions. United States v. Addington, 471 F.2d 560 (10th Cir. 1973); Brundage v. United States, 365 F.2d 616 (10th Cir. 1965). The conduct of the voir dire is within the discretion of the court, Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973); United States v. Crawford, 444 F.2d 1404 (10th Cir. 1971); the court’s exercise of that discretion will not be disturbed unless there is a clear showing of abuse. United States v. Hill, 526 F.2d 1019 (10th Cir. 1975); United States v. De Pugh, 452 F.2d 915 (10th Cir. 1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2452, 32 L.Ed.2d 805"
},
{
"docid": "22273919",
"title": "",
"text": "whether it or the parties’ counsel will conduct the examination. If the court conducts the voir dire, it “shall permit the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper.” Fed.R.Crim.P. 24(a). We have held that “the scope of the voir dire examination and the procedures to be used are matters within the sound discretion of the trial judge, and will not be disturbed on appeal unless the procedures used or the questions propounded are so unreasonable or devoid of the constitutional purpose as to constitute an abuse of that discretion.” Haslam v. United States, 431 F.2d 362, 364 (9th Cir.), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1970). “It is not an abuse of discretion for the trial judge to insist upon conducting a voir dire examination, but if he does so, he must exercise a sound ‘judicial’ discretion in the acceptance or rejection of supplemental questions' proposed by counsel . . ..” Silverthorne v. United States, 400 F.2d 627, 638 (9th Cir. 1968). A. Juror Attitudes Appellant does not contest these principles or the decision of the court to conduct the voir dire examination. Rather, he contends that as a man of unpopular political views who found himself on trial for conspiracy to destroy military recruiting centers, he was entitled to discover prospective jurors’ attitudes toward law enforcement personnel, military personnel, the use of firearms, and the Vietnam War. He argues that the court’s perfunctory exploration of these topics, coupled with its refusal to submit defense counsel’s more probing questions to the jurors, was reversible error. The amount of time a trial court must spend inquiring into prospective jurors’ attitudes varies with each case. Most crimes are mundane, and require only a cursory voir dire examination. Crimes of bombing and terrorism, especially if' committed as a protest against governmental behavior, more easily arouse the prejudices of prospective jurors, however, and"
},
{
"docid": "3830727",
"title": "",
"text": "of you who have any reason to believe that, if selected as juror, you could not follow the law as stated by the Court, whether you disagree with the law or not. Are there any of you who feel you could not follow the law. The instructions read to the jury at the close of the case included the law embodied in the appellant’s requested questions. Appellant raises the issue of whether, during voir dire of prospective jurors, the court must, upon request, inquire whether the jurors can accept certain propositions of law. Rule 24(a) of the Federal Rules of Criminal Procedure states: The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or his attorney and'the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper. This rule allows the trial judge wide discretion as to the scope and conduct of voir dire examination and the decisions in this circuit have given the rule just such a liberal interpretation. In particular the Fifth Circuit and several other circuits as well have held that it is not an abuse of that discretion to refuse to allow inquiries of jurors as to whether they can accept certain propositions of law. In Stone v. United States, 324 F.2d 804 (5th Cir. 1963) defense counsel was personally permitted to question the prospective jurors during voir dire examination. He inquired of the prospective jurors, . if at the close of this case the evidence appears to be well balanced, or even, would you tend to favor one side or the other? The court immediately cautioned that questions that call for conclusions of law must first be addressed to the court. The court refused to allow the question in that form and then asked the prospective jurors if they would"
},
{
"docid": "22273923",
"title": "",
"text": "to inform the court of any different responses which these queries elicited. After observing the amount of time required for a full-scale examination of each juror, the district court had the authority to adopt a more compact mode of inquiry. See Haslam v. United States, supra, 431 F.2d at 364. In United States v. Amaral, 488 F.2d 1148, 1150 (9th Cir. 1973), we approved a voir dire in which the court asked the first prospective juror a question about racial prejudice and thereafter “reminded the prospective jurors that all questions asked of one juror were asked of all and that the voir dire process was a cumulative one designed to probe into the juror’s state of mind to discover whether each could determine guilt or innocence based solely on the evidence presented at trial.” The questions propounded by the district court in United States v. Giese succeeded in ferreting out jurors who were incapable of serving impartially. In response to the court’s general question that incorporated the more specific questions asked of other jurors, several prospective jurors expressed strong feelings about law enforcement personnel and the Vietnam War. These jurors did not serve on the panel which tried appellant. At the close of the initial voir dire, the court permitted defense counsel to suggest additional questions to ask the jurors. Although the court refused to ask requested questions about President Ford’s conditional amnesty plan and his pardon of former President Nixon, it did honor most of the other requests. This procedure gave defense counsel an opportunity to participate in the voir dire and to ensure that jurors with questionable qualifications were eliminated. Appellant argues that the court erred in refusing to accept all his proposed questions, which he offered both before and during the examination. A district court has considerable discretion to accept or reject proposed questions, however, and as long as it conducts an adequate voir dire, its rejection of a defendant’s specific questions is not error. United States v. Heck, 499 F.2d 778, 790 (9th Cir.), cert. denied, 419 U.S. 1088, 95 S.Ct. 677, 42 L.Ed.2d 680 (1974);"
},
{
"docid": "4000733",
"title": "",
"text": "and this was made available to the defense before trial. We are satisfied that the record does not support the claim that the court was misinformed by the Government and there is no showing of any prejudice to the defense in this regard. The broad claim for furnishing of the grand jury transcript was untenable. It is clear that there is no right to grand jury testimony of witnesses not called on to testify at trial. United States v. Parker, 469 F.2d 884 (10th Cir. 1972); Cargill v. United States, 381 F.2d 849, 852 (10th Cir.). Moreover there is no requirement that the grand jury proceedings be recorded for furnishing to the defense. United States v. Cooper, 464 F.2d 648, 653 (10th Cir.); United States v. Goad, 426 F.2d 86, 88 (10th Cir.); MacCaffery v. United States, 372 F.2d 482, 484 (10th Cir.), cert. denied, 387 U.S. 945, 87 S.Ct. 2078, 18 L.Ed.2d 1332. Thus the contentions relating to the grand jury transcripts are without merit under our present decisions and we decline to adopt the views that are urged. 5. Voir dire of the jury Addington says that the trial court erred by refusing to permit his counsel to voir dire the prospective jurors himself, and that he was thereby denied the effective assistance of counsel. He argues that the court merely gave a narrative statement to the prospective jurors and elicited general affirmative or negative answers to qualify them, denying the opportunity for a proper voir dire. Rule 24(a), Fed.R.Crim.P., gives the trial court discretion as to whether to permit voir dire examination of prospective jurors by counsel or to conduct the examination itself. United States v. Mattin, 419 F.2d 1086 (8th Cir.); see also Brundage v. United States, 365 F.2d 616 (10th Cir.). Here the trial court denied the request by defense counsel that he be permitted to question the prospective jurors directly and the court instead chose to conduct the examination, in accordance with the customary practice in this Circuit. See Brundage v. United States, supra at 618. The record shows that defense counsel was permitted"
},
{
"docid": "4179884",
"title": "",
"text": "acquittal for which he hoped, his trial was solely concerned with the issue of insanity. The Legal Aid Agency of the District of Columbia has made a special study of and garnered special experience concerning this defense. Judges in this jurisdiction have been especially concerned with the rights of an accused presenting an insanity defense. For example, the District Judge who had been assigned to this case, and from whose judgment the appeal has been taken, was one known for his readiness to provide the bifurcated trials contemplated by our opinion in Holmes v. United States, 124 U.S.App.D.C. 152, 363 F.2d 281 (1966), and he did in fact give defense counsel the option to have a bifurcated trial, an option which defense counsel first accepted and ultimately declined. We see no substantial basis for upsetting the conviction because of the rulings on transfer of venue. II Appellant asserts that his conviction must be reversed “because the District Court denied him the right to interrogate prospective jurors individually on voir dire.” Although this argument might be construed as an insistence on appellant’s part that his counsel should have been permitted to interrogate prospective jurors individually, in brief and in oral argument appellant’s complaint is aimed at the manner and method by which the trial judge conducted the voir dire, as he had a right to do under Rule 24(a), Fed.R.Crim.P. Appellant is particularly disturbed by the en masse examination conducted by the court rather than individual interrogation of each prospective juror. Appellant also contends that the trial court announced its decision respecting the conduct of the voir dire before his counsel had opportunity to state his position. Some time prior to trial, the court advised counsel for both sides that it would conduct the voir dire examination of the jury, and instructed counsel to submit to the court one week in advance of trial any questions they wished to be addressed to prospective jurors. In a further memorandum distributed three days before the trial began, the court advised counsel as follows: “Individual voir dire of each juror is impractical, unnecessary and"
},
{
"docid": "4000735",
"title": "",
"text": "to submit questions for the prospective jurors to the court, and we feel there was no abuse of discretion in the questioning as conducted. Furthermore defense counsel advised the court on several occasions that he had no further questions to submit on the matters being covered. Adding-ton points to no specific inquiry that should have been made and was omitted and thus shows no prejudice. See United States v. Williams, 417 F.2d 630 (10th Cir.). We believe that the voir dire examination revealed by the record in no way denied the “essential demands of fairness,” United States v. Williams, supra at 631, and did not deprive Addington of the effective assistance of counsel. We are satisfied that no reversible error is shown in these respects. The record reveals a fair trial and no reversible error is demonstrated. Accordingly, the judgment is affirmed. . Addington’s brief specifies the attack on the Government proof by questioning whether it sufficiently established the following points: “1. That at material times, the Defendant knew of the shortages. “2. That at material times the Defendant, with the knowledge of the staff, made or caused to be made, claims to Commodity Credit Corporation for the purpose of attempting to obtain funds to which he knew he was not entitled.. “3. That the Defendant knowingly made false statements to Commodity Credit Corporation, in writing, with the intent to defraud. “4. That the Defendant knew, authorized or aided in the conversion of grain belonging to Commodity Credit Corporation. “5. That the Defendant did any act with guilty knowledge or fraudulent intent.” . The record does not show the disposition of these additional counts against Allison. . One of these transactions was a sale of 100,000 bushels of wheat to Cargill, Inc., in May, 1965. Another was a sale to Continental Grain Co., in May and June, 1965, which was discussed by telephone with Addington. . AVe are advised by Addington's brief that charges on which he was convicted by the Kansas courts were for use of false warehouse receipts and related charges, and that the px-oof concerned the Addington,"
},
{
"docid": "9437633",
"title": "",
"text": "Fed.R.Civ.P. 52(a); see United States v. Wilson, 639 F.2d 500, 503 & n. 2 (9th Cir. 1981) ; see also United States v. Bradshaw, 515 F.2d 360 (D.C.Cir.1975). Indeed, it appears that the court more than adequately protected appellant’s right not to be improperly singled out for prosecution. Accordingly, we affirm the trial court’s ruling on appellant’s selective prosecution claim. D. Scope of Voir Dire Permitted in No. 81-875 During voir dire in No. 81-375 appellant’s counsel requested that prospective jurors be examined for their knowledge and views concerning the Black Hebrews. The district court limited defense counsel to a single question asking whether any prospective jurors had heard of the Black Hebrews. Only one prospective juror answered affirmatively and was excused from the panel for cause. Appellant argues that this isolated and unexplained reference to the Black Hebrews may have confused the jury and aroused suspicions that the appellant was associated with a fringe religious group with peculiar beliefs. Consequently, she argues a wider range of inquiry should have been permitted during voir dire to ascertain prospective juror attitudes towards the Black Hebrews’ beliefs and practices, in order to determine whether any reference to the group during trial might prejudice a juror against the defendant merely because of her membership in the Black Hebrews. It is well settled that “the trial judge is vested with ‘broad discretion’ in the conduct of voir dire — both as to the mode and manner of proceeding ... and as to the range of questions put to the prospective jurors .... ” United States v. Haldeman, 559 F.2d 31, 64-65 (D.C.Cir.1976) (quoting United States v. Robinson, 475 F.2d 376, 380 (D.C.Cir.1973) (citations omitted)), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250(1977); see Fed.R.Crim.P. 24(a). A successful attack on the judge’s handling of voir dire requires the appellant to show not only that he abused his broad discretion, but that she was prejudiced thereby. United States v. Haldeman, 559 F.2d at 65. Since the only prospective juror with any prior knowledge of the Black Hebrews was excused from the panel and"
},
{
"docid": "23596544",
"title": "",
"text": "stated that admonishing the jury to ignore any information that they might have been exposed to was “what we would have done on voir dire anyway.” Furthermore, the requested jury questions that defense counsel submitted to the court before voir dire did not specifically inquire into exposure to media publicity. The tidal court has broad discretion to determine who will question potential jurors and what questions will be asked. Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 1634-35, 68 L.Ed.2d 22 (1981). Rule 24(a) of the Federal Rules of Criminal Procedure provides: The court may permit the defendant or the defendant’s attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or the defendant’s attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper. Fed.R.CRIM.P. 24(a) (emphasis added). The district court did not abuse its discretion in its conduct of voir dire in this case. III. CONCLUSION We hold that 18 U.S.C. § 3559(c) does not violate separation of powers or ex post facto principles and was properly applied to Rasco in this case. We further hold that the evidence was sufficient to support the convictions of Rasco and Milton and that a new trial is not warranted on the basis of the prosecutor’s remarks during closing argument, mid-trial publicity, or the district court’s conduct of voir dire. The judgment of the district court is AFFIRMED. . Rasco's reliance on Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), is inapposite. In Miller, the Supreme Court invalidated on ex post facto grounds the application of revised state sentencing guidelines to a defendant whose crime had occurred four days prior to the effective date of the revised guidelines. In other words, the legislature had effectively increased the punishment for the offense after it was"
}
] |
428500 | "is improper, as a matter of law, notwithstanding the hardship imposed. Cf. Papago Tribal Utility Authority v. FERC, 628 F.2d 235, 243 (D.C.Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980). . See Toilet Goods v. Gardner, 387 U.S. at 164, 87 S.Ct. at 1524 (""judicial appraisal of [an issue] is likely to stand on a much surer footing in the context of a specific application of this regulation than could be the case in the framework of [a] generalized challenge’’); Action Alliance of Senior Citizens v. Heckler, 789 F.2d at 941-42; Reynolds Metal Co. v. FERC, 777 F.2d 760, 762 (D.C.Cir.1985); American Trucking Ass’n, Inc. v. ICC, 747 F.2d at 789-90; REDACTED Air New Zealand Ltd. v. CAB, 726 F.2d at 837; Midwestern Gas Transmission Co. v. FERC, 589 F.2d at 620; Diamond Shamrock Corp. v. Costle, 580 F.2d at 674. . Toilet Goods v. Gardner, 387 U.S. at 164, 87 S.Ct. at 1524. . Action Alliance of Senior Citizens v. Heckler, 789 F.2d at 940-41. In addition to Action Alliance, such harm has been found recently in Capitol Technical Services, Inc. v. FAA, 791 F.2d at 969, and Better Government Association v. Department of State, 780 F.2d at 94. . Tennessee Gas Pipeline Co. v. FERC, 736 F.2d at 751; See Abbott Laboratories v. Gardner, 387 U.S. at 153, 87 S.Ct. at 1517; Gardner v. Toilet Goods, 387 U.S. at 171-74, 87" | [
{
"docid": "17241003",
"title": "",
"text": "that the order is not ripe for judicial review. The purpose of the doctrine of ripeness in the context of reviewing agency action is to “prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967). In at least some of its applications, this doctrine is part of the “case or controversy” requirement of the Constitution, see Regional Rail Reorganization Act Cases, 419 U.S. 102, 138, 95 S.Ct. 335, 356, 42 L.Ed.2d 320 (1974). The Supreme Court has established a two-part test of ripeness, noting that it depends on “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, supra, 387 U.S. at 149, 87 S.Ct. at 1515. The latter portion of the test is not met here. The requisite “hardship” may exist if an agency rule, although not yet enforced against the complainant, compels the complainant to choose between compliance, at some present cost, and failure to comply, at the risk of legal penalty. That was the situation in Abbott Laboratories, where the petitioners were forced to choose between expensive compliance with agency action they thought unlawful and the severe consequences of violating the agency’s rules. That was not the situation in Abbott Laboratories’ companion case, Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), where the Court found that no “irremediable adverse consequences flow from requiring a later challenge.” Id. at 164, 87 S.Ct. at 1525. See also National Association of Regulatory Utility Commissioners v. FCC, 727 F.2d 1212 (D.C.Cir.1984); Air New Zealand Ltd. v. CAB, 726 F.2d 832 (D.C.Cir.1984). The same is true here. Not only is the present action of the Commission not an enforcement action directed against these petitioners, but even the general rule in"
}
] | [
{
"docid": "11119898",
"title": "",
"text": "455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). . Rule 59(e) provides: “A 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). . Obin v. District No. 9, International Association of Machinists, 651 F.2d 574 (8th Cir.1981); Johnson v. Snyder, 639 F.2d 316, 317 (6th Cir.1981); Bond v. Stanton, 630 F.2d 1231, 1234 (7th Cir.1980); Knighton v. Watkins, 616 F.2d 795, 797-98 (5th Cir.1980). . White, 102 S.Ct. at 1167-68. . 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962). . 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964). . 371 U.S. at 217, 83 S.Ct. at 285 (emphasis added). . 375 U.S. at 387, 84 S.Ct. at 398. . Appellant’s Brief at 12. The same concession was made during oral argument. . 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). . Id. at 149, 87 S.Ct. at 1515. . Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603, 618 (D.C.Cir.1978); New York Stock Exchange, Inc. v. Bloom, 562 F.2d 736, 740-41 (D.C.Cir.1977); Independent Bankers Association v. Smith, 534 F.2d 921, 929 (D.C. Cir.1976); Continental Airlines, Inc. v. CAB, 522 F.2d 107, 124-25 (D.C.Cir.1975) (en banc). . Diamond Shamrock Corp. v. Costle, 580 F.2d 670, 674 (D.C.Cir.1978). . Appellant’s Brief at 23-25; Appellant’s Reply Brief at 3-4. . See text at notes 8-11, supra. . Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967). . At oral argument Webb argued that the district court’s refusal to adjudicate section 314.-14’s validity at the present time worked an extraordinary hardship on him because he is a frequent FOIA requester who constantly seeks documents in NDAs. However, nothing in the record suggests that Webb has made more than two FOIA requests, one of which resulted in his receiving the requested documents. See text at note 19, supra. In any event, the hardship is not great because Webb is only required to file one FOIA action in which there is a live dispute before he"
},
{
"docid": "15244658",
"title": "",
"text": "n. 4 (1982) [hereinafter “Reconsideration Order”]. . Digital Termination Systems (First Report and Order), 86 F.C.C.2d at 363. . See 47 C.F.R. § 2.106 (1980). . On petition for reconsideration, the FCC modified some of these regulations. See 90 F.C.C.2d 319 (1982). None of the technical aspects of the FCC Order are before this court. . NARUC is a quasi-governmental organization the membership of which includes the governmental agencies responsible for the regulation of carriers and utilities in each of the fifty states, the District of Columbia, Puerto Rico, and the Virgin Islands. . 47 U.S.C. §§ 35, 151-609 (1976 & Supp. V 1981). . Intervenors Charles Firestone, Satellite Business Systems (SBS), Tymnet, Inc. (Tymnet), GTE Telenet Communications Corporation (GTE), ISA Communications Services, Inc. (ISA), Southern Pacific Communications Company (Southern Pacific), U.S. Telephone and Telegraph Corporation (U.S. T & T), and MCI Telecommunications Corporation (MCI) were, at the time of the Commission’s proceeding, potential entrants into DTS or similar communications services. Intervenors’ Briefs for Mr. Firestone and SBS and a joint brief by Tymnet and GTE were submitted in support of the FCC’s position. Mr. Firestone was granted leave to withdraw as an intervenor by order of the court on May 17, 1983, prior to oral argument. . Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967). For a discussion of Abbott Laboratories and its implications for petitions for review of agency actions, see Air New Zealand Ltd. v. CAB, 726 F.2d 832 at 835-837 (D.C.Cir.1984). . Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515. . Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967). . Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515 (emphasis supplied). . The Supreme Court in Abbott took particular note of the fact that no further administrative proceedings were contemplated with respect to the matter before the Court in that case. Id.; see also id. at 149-51, 87 S.Ct. at 1515-17. . See, e.g., Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18"
},
{
"docid": "13979279",
"title": "",
"text": "of the leased access rule satisfies the basic fitness requirement that a purely legal issue be framed. See, e.g., Baltimore Gas & Electric Co. v. ICC, 672 F.2d 146, 149 (D.C.Cir.1982) (“[T]he issue tendered is a purely legal one: whether the statute was properly construed by the [Commission].”) (quoting Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515). In addition, the case satisfies a collateral fitness requirement that the action under review constitute final agency action. Id. (“Nor do we consider review excluded for lack of a final agency decision or simply because the order in question is ‘interpretive.’ ” (citation omitted)). But fitness for review is not satisfied when “judicial appraisal ... is likely to stand on a much surer footing in the context of a specific application of this [interpretative rule] than could be the case in the framework of the generalized challenge made here.” Toilet Goods Ass’n v. Gardner, 387 U.S. at 164, 87 S.Ct. at 1524 (1967). Obviously, neither the parties nor the court can predict whether the technical configuration of a particular control system will successfully prevent access to proprietary information. Moreover, the extent of the burden, if any, imposed by the present rules can only be assessed in a specific context. Thus, pursuant to Toilet Goods, petitioners’ challenge is not fully fit for review. Petitioners’ claim also fails the hardship test, which in its essence requires that the challenged action impose a non-speculative hardship on the parties if court consideration is delayed. See id. at 164, 87 S.Ct. at 1524. Petitioners allege that the interpretative ruling affects cable operators and independent programmers in their day-to-day operations, thus meeting the hallmark test of hardship. In particular, they claim independent programmers will be forced to obtain access through more costly and less competitive means. See Supplemental Brief for ACLU at 8 (“The Commission’s ruling thus places unaffiliated cable programmers at ‘an acute competitive disadvantage’ — precisely the type of injury that makes Petitioners’ challenge ripe for review.” (citation omitted)). Although the Commission says this burden falls within the statute’s contemplation, the argument is properly addressed"
},
{
"docid": "14859046",
"title": "",
"text": "The second condition, imposed by the AU and affirmed by the Commission, requires Northern, after its next rate case, to credit any net overrecovery of fixed costs to its non-discount customers. Assuming, without deciding, that the imposition of this condition constitutes “final agency action,” 5 U.S.C. § 704 (1982), cf Reynolds Metals Co. v. FERC, 777 F.2d 760, 761-62 (D.C.Cir.1985), and that the dispute regarding it has not become moot, we nonetheless find another jurisdictional impediment to our reviewing it. Judicial intervention at this stage would run afoul of the ripeness doctrine, which serves “to prevent the courts ... from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Application of that doctrine requires us to consider (1) the fitness of the issue for judicial decision and (2) the hardship to the parties of withholding immediate judicial review. Id. at 149, 87 S.Ct. at 1515; Air New Zealand Ltd. v. CAB, 726 F.2d 832, 837 (D.C.Cir.1984). On both counts, the present condition falls short. It is impossible to consider the validity of this prean-nounced term of the ratemaking order without considering the other terms that will accompany it. See Reynolds Metals Co. v. FERC, supra, at 762. If, for example, the future order establishes the contributions to fixed costs that must be obtained from non-discount customers without regard to the prospect of discount sales, then the condition would be necessary to prevent double recovery. Secondly, Northern will suffer absolutely no hardship until the condition is in fact imposed and becomes reviewable as part of the Commission’s rate determination. The condition has no immediate application, nor does the announcement of its future application cause it to be “felt immediately by those subject to it in conducting their day-to-day affairs,” in such fashion that “primary conduct is affected,” Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 164, 87"
},
{
"docid": "13979278",
"title": "",
"text": "to those systems which are addressable and which already have in place computer software that does not permit the cable operator to shield its proprietary information from potential third party users.” Supplemental Brief for Respondents at 2-3. It is conceded that the FCC has not yet applied its interpretation in a particular case. Indeed, the FCC says that “it is unknown how many cable systems, if any, fall into this category.” Supplemental Brief for Respondents at 3. c. Ripeness The ripeness determination is governed by the wellworn principles of Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), and its companion cases, Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), and Gardner v. Toilet Goods Ass’n, Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967), which require courts “to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515. Review of the leased access rule satisfies the basic fitness requirement that a purely legal issue be framed. See, e.g., Baltimore Gas & Electric Co. v. ICC, 672 F.2d 146, 149 (D.C.Cir.1982) (“[T]he issue tendered is a purely legal one: whether the statute was properly construed by the [Commission].”) (quoting Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515). In addition, the case satisfies a collateral fitness requirement that the action under review constitute final agency action. Id. (“Nor do we consider review excluded for lack of a final agency decision or simply because the order in question is ‘interpretive.’ ” (citation omitted)). But fitness for review is not satisfied when “judicial appraisal ... is likely to stand on a much surer footing in the context of a specific application of this [interpretative rule] than could be the case in the framework of the generalized challenge made here.” Toilet Goods Ass’n v. Gardner, 387 U.S. at 164, 87 S.Ct. at 1524 (1967). Obviously, neither the parties nor the court can predict whether the technical configuration"
},
{
"docid": "12421653",
"title": "",
"text": "Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967). In Abbott, the Court held that we must “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id.; see also Assiniboine & Sioux Tribes v. Board of Oil & Gas Conservation, 792 F.2d 782, 788 (9th Cir.1986). “[Rjipeness will prevent review if the systemic interest in postponing adjudication due to lack of fitness outweighs the hardship on the parties created by postponement.” Chavez v. Director, OWCP, 961 F.2d 1409, 1414 (9th Cir.1992) (citations omitted). A. Fitness for Review We will determine first the fitness for judicial review of plaintiffs' claim that the EPA and the Corps violated the notice and comment requirement of the APA. See 5 U.S.C. § 553 (1988). Generally, agency action is fit for review if the issues presented are purely legal and the regulation at issue is a final agency action. Abbott, 387 U.S. at 149, 87 S.Ct. at 1516; see also Assiniboine & Sioux Tribes, 792 F.2d at 789 (“Review is not premature if the agency action is final, and is ‘purely legal.’ ” (quoting Abbott)). However, the Supreme Court has indicated that there are instances when a purely legal challenge to a final agency action will not be considered ripe. In Toilet Goods Association v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), decided the same day as Abbott, the Court held that a legal challenge to final agency action was not ripe because “judicial appraisal ... is likely to stand on much surer footing in the context of a specific application of th[e] regula-tion_” Id. at 164, 87 S.Ct. at 1524; see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891, 110 S.Ct. 3177, 3190, 111 L.Ed.2d 695. (1990) (indicating that agency regulations are not ordinarily ripe for review until the “factual components [have been] fleshed out, by some concrete action applying the regulation_”); Trustees For Alaska v. Hodel, 806 F.2d 1378, 1381 (9th Cir.1986) (stating that agency action is fit for review"
},
{
"docid": "18764572",
"title": "",
"text": "it draws from Abbott Laboratories. Although, as Justice Harlan said, pragmatism plays a role in judicial determinations as to whether a particular agency action is final, it is quite a leap to conclude that pragmatism can obviate the need to identify one agency action as final. Such an approach not only suggests a casual treatment of the plain language of the statute, but also introduces much uncertainty into a federal district court’s threshold determination of jurisdiction vel non. Passing all of these hurdles arguendo, I disagree with the majority opinion even on its own “pragmatic” terms. First, despite Ciba-Geigy’s attempt to portray its challenge as raising a “pure” legal question, I am convinced that consideration of its claim “is likely to stand on a much surer footing in the context of a specific application” of the EPA’s asserted authority to proceed through a misbranding action. Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967). It is quite conceivable to me that the grounds upon which the EPA contends a particular label is misbranded may bear on the complicated issue of whether a mis-branding proceeding may be brought against a producer whose existing registration has not yet been cancelled. Cf. id. at 163-64, 87 S.Ct. at 1524-25. I, for one, feel quite uncomfortable in asking the district court to resolve the fine points of law upon which the parties disagree in so abstract a setting as is involved here. It bears repeating that the EPA has not committed itself or even declared it likely that it will press its interpretation of FIFRA’s mis-branding provisions in an enforcement proceeding, see Tennessee Gas Pipeline Co. v. FERC, 736 F.2d 747, 750-51 (D.C.Cir.1984); the agency only articulated its view, in fact, in response to inquiries by Ciba-Gei-gy’s counsel. To be sure, the EPA’s response to that inquiry has made Ciba-Geigy quite apprehensive, and to that extent has had a “practical” effect on its business. But focusing solely on the practical consequences of agency action obviously proves too much. Any time a government agency tells a party"
},
{
"docid": "14859129",
"title": "",
"text": "(1967). . Id. at 149, 87 S.Ct. at 1515. . Id.; see also Eagle-Picher Indus., Inc., 759 F.2d at 915; Continental Airlines, Inc. v. CAB, 522 F.2d 107, 126 (D.C.Cir.1974) (en banc). . See Arkansas Power & Light Co. v. ICC, 725 F.2d 716, 725 (D.C.Cir.1984); Continental Airlines, Inc., 522 F.2d at 124-25. . Toilet Goods Assoc., Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967). . Although the meaning of the guidelines and regulation might be illustrated by their application to particular fee waiver requests, such illustrations are not necessary to appellants’ challenges. They contend that, even without application, the standards are facially inconsistent with FOIA and violate the APA, and are therefore illegal. It is these claims that we hereby hold ripe for review. . See Continental Airlines, Inc. v. CAB, 522 F.2d 107, 124 (D.C.Cir.1974) (\"The label an agency attaches to its action is not determinative.”). Although it is not clear whether State and Interior were required to adopt the DOJ guidelines, they apparently have constructively done so. . See Abbott Laboratories, 387 U.S. at 149-50, 87 S.Ct. at 1515-16. . Although certain of the questions that are pertinent to ripeness may also go to the merits, we do not mean to prejudge the merits of these cases. The ripeness issue — concerning whether these cases are now fit for review — is separate from the questions concerning the nature of the guidelines and regulation, their alleged inconsistency with the legal mandate of FOIA, and the alleged applicability of notice and comment rulemaking under the APA. It is these latter questions that will be resolved by the District Court on remand. . Sea-Land Service, Inc. v. Federal Maritime Comm'n, 402 F.2d 631, 633 (D.C.Cir.1968). . Abbott Laboratories, 387 U.S. at 152, 87 S.Ct. at 1517. . Id. . Toilet Goods Assoc., Inc. v. Gardner, 387 U.S. at 164, 87 S.Ct. at 1524. . Ettlinger v. FBI, 596 F.Supp. at 872; see also S.Rep., supra note 6, at 11-12. . S.Rep., supra note 6, at 11-12. . Subcomm. Report, supra note 7,"
},
{
"docid": "14429412",
"title": "",
"text": "cause a grantee to exceed the target ratio so as to determine whether those circumstances would implicate section 111 of the CDBG Act. Indeed, were the court to rule on the issue now, “it would be required to conduct a pseudo-rulemaking proceeding” by examining and weighing all of the considerations that might lead the agency to hold or refuse to hold a hearing before reducing Houston’s CDBG in the future. Webb v. Department of Health & Human Servs., 696 F.2d 101, 107 (D.C.Cir.1982). Further, HUD’s regulations also allow for agency discretion to impose penalties, providing that HUD “may require the [grantee] to undertake appropriate corrective or remedial actions,” and if that step fails, HUD “may impose a sanction.” 24 C.F.R. § 570.900(6), (7) (emphasis added). Thus, “the challenged proscription is discretionary so that it is unclear if, when or how the agency will employ it.” Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940 (D.C.Cir.1986), vacated on other grounds, 494 U.S. 1001,110 S.Ct. 1329, 108 L.Ed.2d 469 (1990). As the Supreme Court observed in assessing an analogous provision: “The regulation serves notice only that the Commissioner may under certain circumstances order inspection of certain facilities and data_ At this juncture we have no idea whether or when such an inspection will be ordered and what reasons the Commissioner will give to justify his order.” Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 163, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967). Judicial review of this issue “is likely to stand on a much surer footing in the context of a specific application of this regulation than could be the case in the framework of the generalized challenge made here.” Id. at 164, 87 S.Ct. at 1524. Finally, under the “hardship” prong, we consider Houston’s “interest in immediate review.” Better Gov’t, 780 F.2d at 92. As stated above, appellant noted in passing in its Reply Brief that HUD’s alleged policy of violating of CDBG Act section 111 affects the city’s ongoing relationship with the agency. This vague grievance really amounts only to a complaint that this issue remains unresolved."
},
{
"docid": "5313675",
"title": "",
"text": ". Abbott Laboratories v. Gardner, 387 U.S. 136, 152, 87 S.Ct. 1507, 1517, 18 L.Ed.2d 681 (1967) (petitioners must either comply with regulation at great expense, or follow status quo and risk prosecution); see Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967) (challenged regulation does not affect petitioner’s primary conduct; insufficient hardship to warrant review); accord, Bethlehem Steel v. EPA, 536 F.2d 156, 163 (7th Cir. 1976). . June 7 Order, J.A. at 103. . 15 U.S.C. § 717f (1976). ' . See Distrigas Corp. v. FPC, 162 U.S.App.D.C. 1, 10, 495 F.2d 1057, 1066 (1974) (section 3 “public interest” standard essentially equivalent to section 7 standard of “public convenience and necessity”); Joint Senate Hearings, at 454 (FPC comments indicate that under sections 3 and 7 of Natural Gas Act, Commission considers gas supply in relation to demands for gas as shown by overall public interest). . This uncontroverted fact was presented at oral argument. . Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945). . Id. at 333, 66 S.Ct. 148. . Delta Air Lines v. CAB, 97 U.S.App.D.C. 46, 51, 228 F.2d 17, 22 (1955) (per curiam). . Northwest Airlines v. CAB, 90 U.S.App.D.C. 158, 163, 194 F.2d 339, 344 (1952). . Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 332, 66 S.Ct. 148, 90 L.Ed. 108 (1945). . See notes 107-10 and accompanying text supra. . See Brief for Midwestern, at 8-9, 12 (TransCanada, sole supplier for Midwestern’s Northern Division, applied in April, 1978 to Canadian NEB for new license to export additional gas to Midwestern; Pan-Alberta will also apply for export license, and NEB “may well be reluctant to issue both licenses”); Application of Midwestern Gas Transmission Company for Clarification and/or Rehearing of FERC Order issued June 7, 1978, Docket Nos. CP78-123, et al. (July 7, 1978), J.A. at 145. . Citizens Communications Center v. FCC, 145 U.S.App.D.C. 32, 36, 447 F.2d 1201, 1204 (1971); Midwestern Gas Transmission Co. v. FPC, 103 U.S.App.D.C. 360, 366, 258 F.2d 660, 666 (1958); Delta Air"
},
{
"docid": "18580483",
"title": "",
"text": "claims that the actions under review are not final, that the controversy is not yet ripe for judicial resolution, and that petitioners lack standing to bring this challenge. As to finality: In approving the FFTB’s special permission application and in approving the tariff containing the rule, the Commission has twice rejected petitioners’ arguments on the merits. Thus, this case is quite different from Papago Tribal Utility Authority v. FERC, 628 F.2d 235 (D.C.Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980), and similar cases in which agencies accepted tariff filings for the very purpose of being able to consider objections to the filings. See ASARCO, Inc. v. FERC, 777 F.2d 764, 771-73 (D.C.Cir.1985). As to ripeness: The Commission argues that petitioners should be required to wait until they actually suspect an FFTB member of abusing the new rule, file a complaint, seek discovery, and then, depending on the results of discovery, ask the Commission for help. But the gravamen of petitioners’ complaint is that any use of the rule is an abuse, precisely because it does not permit petitioners and others to know what rates are being offered. When the very basis of attack is the secrecy of rates and hence the inability to challenge them, it would be absurd to hold the controversy unripe because petitioners cannot identify instances where the secret rates have been unreasonable or discriminatory. There is no doubt, moreover, that the rule affects petitioners’ primary conduct, see Air New Zealand Ltd. v. CAB, 726 F.2d 832, 835-36 (D.C.Cir.1984), since it renders them unable to match their competitors’ unknown prices. The hardship petitioners now suffer from the “average rate” rule, and the fitness of the legal issues for judicial resolution, render this controversy ripe. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Finally, as to standing: The competitive injury just described constitutes injury in fact, and competitive injury is included within the zone of interests protected by the Interstate Commerce Act. See Central & Southern Motor Freight Tariff Ass’n v. United States, 757"
},
{
"docid": "14859047",
"title": "",
"text": "parties of withholding immediate judicial review. Id. at 149, 87 S.Ct. at 1515; Air New Zealand Ltd. v. CAB, 726 F.2d 832, 837 (D.C.Cir.1984). On both counts, the present condition falls short. It is impossible to consider the validity of this prean-nounced term of the ratemaking order without considering the other terms that will accompany it. See Reynolds Metals Co. v. FERC, supra, at 762. If, for example, the future order establishes the contributions to fixed costs that must be obtained from non-discount customers without regard to the prospect of discount sales, then the condition would be necessary to prevent double recovery. Secondly, Northern will suffer absolutely no hardship until the condition is in fact imposed and becomes reviewable as part of the Commission’s rate determination. The condition has no immediate application, nor does the announcement of its future application cause it to be “felt immediately by those subject to it in conducting their day-to-day affairs,” in such fashion that “primary conduct is affected,” Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967). See Air New Zealand Ltd., 726 F.2d at 837-38. Thus, to intervene at this stage would be to “venture away from the domain of judicial review into a realm more accurately described as judicial preview. No roving preview function has been assigned to courts in the federal system.” Tennessee Gas Pipeline Co. v. FERC, 736 F.2d 747, 751 (D.C.Cir.1984). * * * * For the reasons stated, we dismiss as unreviewable the petitioner’s challenge to the future crediting condition, and vacate that portion of the Commission’s order imposing the present crediting condition. Since it is substantially doubtful that the Commission would have approved Northern’s Section 7 application without the condition we have vacated (its reasoning suggests that it might not have), we must remand the matter to the Commission for proceedings not inconsistent with this opinion. See North Carolina v. FERC, 730 F.2d 790, 795-96 (D.C.Cir.1984). So ordered. Before ROBINSON, Chief Judge, WRIGHT, WALD, MIKVA, EDWARDS, GINSBURG, BORK, SCALIA, STARR, SILBERMAN and BUCKLEY, Circuit Judges. ORDER PER CURIAM:"
},
{
"docid": "5313671",
"title": "",
"text": "113, 126, 237 F.2d 741, 754 (1956) (citing McLean Trucking Co. v. United States, 321 U.S. 67, 79-80, 64 S.Ct. 370, 88 L.Ed. 544 (1944)). . 15 U.S.C. § 717f (1976). . ' June 7 Order, J.A. at 102. Northwest must file applications for authority to resell its imported gas, and to construct new facilities. 15 U.S.C. § 717f(c) (1976). . See Continental Air Lines, Inc. v. CAB, 173 U.S.App.D.C. 1, 19, 522 F.2d 107, 125 (1974) (if agency position likely to be modified before put into effect, review wastes court’s time). . See Abbott Laboratories v. Gardner, 387 U.S. 136, 147, 154, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (issue’s fitness for judicial decision involves determination whether 1) agency action is final, 2) issue presents purely legal question, and 3) immediate review will avoid multiplicity of suits); cf. Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 162, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967) (although agency action is final, issue not appropriate for judicial resolution). . See generally Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 163-66, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967) (agency regulation final but issue not fit for judicial decision; court withholds consideration until regulation tested in concrete situation). . August 4 Order, J.A. at 178. . June 7 Order, J.A. at 104-05. . Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945). . Id. . Id. at 333, 66 S.Ct. at 151. . See United Air Lines v. CAB, 97 U.S.App.D.C. 42, 44 — 45, 228 F.2d 13, 15-16 (1955) (petition for review of agency refusal to consolidate hearings dismissed because agency action not final; Ashbacker claims not ripe); Western Air Lines v. CAB, 184 F.2d 545, 551-52 (9th Cir. 1950) (Ashbacker claim not applicable to proceedings to consolidate hearings on allegedly competitive applications because agency action not final; petition for review dismissed). . Delta Air Lines v. CAB, 97 U.S.App.D.C. 46, 51, 228 F.2d 17, 22 (1955) (per curiam); accord, Citizens Communications Center v. FCC, 145 U.S.App.D.C. 32, 36, 447 F.2d 1201, 1205 (1971); Midwestern Gas Transmission"
},
{
"docid": "16658353",
"title": "",
"text": "Natural Gas Act, 15 U.S.C. §§ 717-717w (1982) (NGA), interpretative rule. See 48 Fed.Reg. 24,361 (1983) (to be codified at 18 C.F.R. § 2.52). This case, pursued by Tennessee Gas Pipeline Company (Tennessee), involves a challenge to the Commission’s NGA interpretative rule change. FERC presents a threshold objection to Tennessee’s petition for review. The Commission states that its new NGA interpretative rule has “no definitive impact on the rights of anyone” and is therefore not an independently reviewable action. Brief for the Respondent Federal Energy Regulatory Commission at 15 n. 5 (FERC Brief). We conclude that the alleged “hardship” imposed on Tennessee by FERC’s action lacks the concrete quality and immediacy necessary to invoke judicial review of an agency’s bare interpretative statement on the meaning of a statutory text. See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967); Gardner v. Toilet Goods Association, Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967); see also South Carolina Electric & Gas Co. v. ICC, 734 F.2d 1541 (D.C.Cir.1984); Baltimore Gas & Electric Co. v. ICC, 672 F.2d 146 (D.C.Cir.1982). We therefore dismiss Tennessee’s petition for want of a question ripe for review. We recognize, however, as does the Commission, FERC Brief at 15 n. 5, that the FPA and NGA are similarly designed statutes. A court determination in an FPA adjudication may bear significantly on the appropriate construction of the NGA. See, e.g., Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 577 n. 7, 101 S.Ct. 2925, 2930 n. 7, 69 L.Ed.2d 856 (1981). Because Tennessee has an evident interest in the latter statute’s construction and application, we will accept Tennessee’s presentation in this case as the submission of an amicus curiae in our review of FERC’s Middle South adjudication. Two, now black letter, criteria govern ripeness determinations: “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. at 149, 87 S.Ct. at"
},
{
"docid": "1984842",
"title": "",
"text": "challenge to an agency action by balancing two factors: the “fitness of the issues for judicial decision” and the “hardship to the parties of withholding court consideration.” Abbott Lab. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). In this case, our treatment of the “fitness” question is similar to the standard treatment of a facial challenge where the federal agency itself has discretion. As we noted in Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931 (D.C.Cir.1986), a “facial, purely legal challenge is both more difficult and less worthwhile when the prescription challenged is discretionary. To hold the provision invalid on its face, a court would have to conclude that the provision stands in conflict with the statute regardless of how the agency exercises its discretion.” Id. at 941. Here, it is localities that have the discretion, not the FCC, but the same principle applies. In short, we “believe that judicial appraisal” of the First Amendment issue “is likely to stand on a much surer footing in the context of a specific application of [the Cable Definition Rule] than could be the case in the framework of the generalized challenge made here.” Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967). First, we will benefit from postponing review until an as-applied challenge because the First Amendment analysis depends on the local franchising regime. Different regimes will impose different burdens, which may or may not be justifiable under the First Amendment. Moreover, the judicial standard for evaluating the justification will vary with the regime. This standard depends on: whether, in the case of a regulation of activity which combines expressive with nonexpressive elements, the regulation aims at the activity or the expression; whether the regulation restricts speech itself or only the time, place, or manner of speech; and whether the regulation is in fact content-based or content-neutral. Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., — U.S. -, 112 S.Ct. 501, 514-15, 116 L.Ed.2d 476 (1991) (Kennedy, J., concurring in judgment)"
},
{
"docid": "2322190",
"title": "",
"text": "presented — whether the regulations are arbitrary and capricious — is a “purely legal question,” Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1516, ‘which allows the court to “assume its threshold suitability for judicial determination,” Eagle-Picher, 759 F.2d at 915. We disagree. Where an agency has discretion in the application of the challenged regulations, as in this case, a purely facial challenge may not be ripe for review if the agency could grant the requested relief and thereby obviate the need for judicial review. See Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967) (“judicial appraisal of [the relevant] factors is likely to stand on a much surer footing in the context of a specific application of [the] regulation than could be the case in the framework of the generalized challenge made here”); Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940-41 (D.C.Cir.1986); Air New Zealand Ltd. v. Civil Aeronautics Board, 726 F.2d 832, 836 (D.C.Cir.1984). In the case sub judice, the Commission virtually concedes that petitioners PFAW and UCS would qualify for preferred status as “representatives of the news media.” See Commission Brief at 36 (PFAW and UCS, for purposes of regular publication of a newsletter or periodical, would qualify for reduced fees). In light of the Commission’s discretion in the application of its own regulations, see Cross-Sound Ferry Services, Inc. v. Interstate Commerce Commission, 873 F.2d 395, 401 (D.C.Cir.1989), we think the Commission should at least be given the first opportunity to apply its regulations to petitioners. Accordingly, “postponing review would provide for a more efficient examination and disposition of the issues,” State Farm Mutual Automobile Insurance Co. v. Dole, 802 F.2d 474, 479 (D.C.Cir.1986) (citations omitted), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 800 (1987). We cannot therefore conclude that the facial challenge raised by petitioners is, at this time, “fit” for judicial review. Petitioners argue that Better Government Association v. Department of State, 780 F.2d 86, 92-96 (D.C.Cir.1986), compels a finding of ripeness in this case, but we are not"
},
{
"docid": "15244659",
"title": "",
"text": "GTE were submitted in support of the FCC’s position. Mr. Firestone was granted leave to withdraw as an intervenor by order of the court on May 17, 1983, prior to oral argument. . Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967). For a discussion of Abbott Laboratories and its implications for petitions for review of agency actions, see Air New Zealand Ltd. v. CAB, 726 F.2d 832 at 835-837 (D.C.Cir.1984). . Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515. . Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967). . Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515 (emphasis supplied). . The Supreme Court in Abbott took particular note of the fact that no further administrative proceedings were contemplated with respect to the matter before the Court in that case. Id.; see also id. at 149-51, 87 S.Ct. at 1515-17. . See, e.g., Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967); Air New Zealand Ltd. v. CAB, 726 F.2d 832 at 838 (D.C.Cir.1984). . Abbott Laboratories, 387 U.S. at 152, 87 S.Ct. at 1517. . 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). . Id. at 152, 87 S.Ct. at 1517 (quoting from the district court findings in Abbott Laboratories v. Celebrezze, 228 F.Supp. 855, 861 (D.Del.1964), rev’d, 352 F.2d 286 (3d Cir.1965), rev’d, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). . 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). . Id. at 162-63, 87 S.Ct. at 1523-24. The Court did note, however, that, because of the broad grant of statutory authority to promulgate enforcement regulations, the reasons given by the Commissioner to justify a specific inspection order might be relevant to the legal question at hand. Id. at 163, 87 S.Ct. at 1524. . Id. at 164, 87 S.Ct. at 1524; see also Baltimore Gas & Elec. Co. v. ICC, 672 F.2d 146, 148-49 (D.C.Cir.1982) (hypothetical state of affairs is insufficient to support review) (agency"
},
{
"docid": "2322189",
"title": "",
"text": "is a facial challenge to the Commission’s fee waiver regulations. We hold, however, that due to uncertainties in the actual meaning of the regulations at issue, petitioners’ challenge is not ripe for review. The ripeness doctrine, in its prudential form, is concerned with “the petitioner's interest in prompt consideration of allegedly unlawful agency action[,] * * * the agency’s interest in crystallizing its policy before that policy is subjected to judicial review and the court’s interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting.” Eagle-Picher Industries, Inc. v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985) (footnote omitted). In evaluating ripeness claims, the Supreme Court has instructed reviewing courts to determine “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Petitioners contend that the Commission’s final regulations are sufficiently “crystallized” and will not be modified or abandoned before they are put into effect, and that the issue presented — whether the regulations are arbitrary and capricious — is a “purely legal question,” Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1516, ‘which allows the court to “assume its threshold suitability for judicial determination,” Eagle-Picher, 759 F.2d at 915. We disagree. Where an agency has discretion in the application of the challenged regulations, as in this case, a purely facial challenge may not be ripe for review if the agency could grant the requested relief and thereby obviate the need for judicial review. See Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967) (“judicial appraisal of [the relevant] factors is likely to stand on a much surer footing in the context of a specific application of [the] regulation than could be the case in the framework of the generalized challenge made here”); Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940-41 (D.C.Cir.1986); Air New Zealand Ltd. v. Civil Aeronautics Board, 726 F.2d 832, 836 (D.C.Cir.1984). In the case sub judice, the"
},
{
"docid": "14280525",
"title": "",
"text": "F.2d 1541, 1545 (D.C.Cir.1984); 4 K. Davis, Administrative Law Treatise § 25:1, at 350 (2d ed. 1983); Gellhorn & Boyer, supra note 38 at 319. . See, e.g., Abbott Laboratories, 387 U.S. at 148-49, 87 S.Ct. at 1515-16; American Trucking Ass'ns, Inc. v. ICC, 747 F.2d 787, 789-90 (D.C.Cir. 1984); Andrade v. Lauer, 729 F.2d 1475, 1480 (D.C.Cir.1984); Diamond Shamrock, 580 F.2d at 672-74; Continental Airlines, Inc. v. CAB, 522 F.2d 107, 124-25 (D.C.Cir.1974) (en banc); National Automatic Laundry & Cleaning Council v. Shultz, 443 F.2d 689, 694-704 (1971). In our discussion here, we refer to the doctrine only in its prudential aspects. No party to this case has argued that the constitutional criteria have not been met, and we assume for the purposes of our analysis that they have been met. . 387 U.S. at 149, 87 S.Ct. at 1515. . See, e.g., Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515; B.G. & E., 672 F.2d at 149; Continental Air Lines, 522 F.2d at 126; National Automatic Laundry, 443 F.2d at 695. . Continental Air Lines, 522 F.2d at 124-25 (fitness prong inquiries into interests of court and agency in postponing review); see also Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603, 618 (D.C.Cir.1978) (fitness prong inquires into court’s interest in postponing review). . Continental Air Lines, 522 F.2d at 125 (footnote omitted). . See, e.g., Midwestern Gas, 589 F.2d at 618; Diamond Shamrock, 580 F.2d at 672; Continental Air Lines, 522 F.2d at 124-25. Professor Davis, on the other hand, believes that these institutional concerns should be evaluated under the \"hardship to the parties\" prong. Davis, supra note 52, § 25:6, at 368-69. See also EPA v. National Crushed Stone Ass'n, 449 U.S. 64, 72-73 n. 12, 101 S.Ct. 295, 301-302 n. 12, 66 L.Ed.2d 268 (1980) (taking agency's interest into account under \"hardship to the parties\"). It seems to matter little which prong is assigned these institutional concerns, so long as the interests of the agency and the court in deferring review, when they exist, are weighed against the petitioner’s conflicting interest in immediate"
},
{
"docid": "16495769",
"title": "",
"text": "1515, and this court has held that the question of whether an agency decision is arbitrary and capricious is a purely legal question, Fox Television Stations, Inc. v. FCC, 280 F.3d 1027, 1039 (D.C.Cir.), opinion modified on reh’g on other grounds by 293 F.3d 537 (D.C.Cir.2002). Final agency action pursuant to the Administrative Procedure Act (“APA”) is a “crucial prerequisite]” to ripeness, Better Government Association v. Dep’t of State, 780 F.2d 86, 88 (D.C.Cir.1986); see Abbott Labs., 387 U.S. at 149, 87 S.Ct. at 1515-16, and it is clear that the Third Order is “final” for purposes of the APA. However, issues still may not be fit for review where the agency retains considerable discretion to apply the new rule on a case-by-case basis, particularly where there is a complex statutory scheme or there are other difficult legal issues that are implicated by the agency action. Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 163-64, 87 S.Ct. 1520, 1524-25, 18 L.Ed.2d 697 (1967). In such circumstances, judicial review “is likely to stand on a such surer footing in the context of a specific application of [the] regulation than could be the case in the framework of [a] generalized challenge.” Id. at 164, 87 S.Ct. at 1524. Guided by this instruction, this court has held that where the agency retains substantial discretion to implement its decision, the decision is not ripe for judicial review until it has been implemented in particular circumstances. See, e.g., Office of Communication of the United Church of Christ v. FCC, 826 F.2d 101, 105-08 (D.C.Cir.1987); ACLU v. FCC, 823 F.2d 1554, 1576-77 (D.C.Cir.1987); see also Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940-42 (D.C.Cir.1986). On the other hand, where the agency has replaced a prohibition or right with a discretionary process and applied its new process, the court has held that a challenge to the agency decision is ripe for judicial review: the agency has crystalized its position and to that extent it has been applied so that it has a direct and immediate impact. See Better Gov’t Ass’n, 780 F.2d at 92-93;"
}
] |
310755 | Boyden III, and also given the nexus between the Boydens’ murders, we believe that the chain of inferences forged by the prosecution is too loose (albeit by the slimmest of margins) to hold Houlihan criminally responsible for the charged crimes. C. Severance. The reader will recall that the indictment charged Herd, Lynch, and Fitzgerald — but not Houlihan and Nardone — with offenses related to the murder of James Boyden IV. Houlihan and Nardone contend that the court had an obligation to sever their trials from the trial of the counts relating to the Boyden IV murder. We disagree. When several defendants are named in a unified indictment, there is a strong presumption that they should be tried together. See REDACTED O’Bryant, 998 F.2d at 25. To obtain a severance under such circumstances, a defendant must demonstrate extreme prejudice, such as by showing a “serious risk that a joint trial would compromise a specific trial right,” or would “prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539, 113 S.Ct. at 938. Houlihan and Nardone cannot scale these heights. Their central thesis is that the government’s evidence concerning the Boyden IV murder tended to show that the victim was slaughtered in an organization-related turf battle, and therefore threatened to infect the jury’s consideration of other counts. But they dress this thesis in the gossamer vestments of speculation and | [
{
"docid": "22610255",
"title": "",
"text": "properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. For example, evidence of a codefendant’s wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. See Kotteakos v. United States, 328 U. S. 750, 774-775 (1946). Evidence that is probative of a defendant’s guilt but technically admissible only against a codefendant also might present a risk of prejudice. See Bruton v. United States, 391 U. S. 123 (1968). Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial. See, e. g., Tifford v. Wainwright, 588 F. 2d 954 (CA5 1979) (per curiam). The risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not discussed here. When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but, as we indicated in Richardson v. Marsh, less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice. See 481 U. S., at 211. Turning to the facts of this case, we note that petitioners do not articulate any specific instances of prejudice. In stead they contend that the very nature of their defenses, without more, prejudiced them. Their theory is that when two defendants both claim they are innocent and each accuses the other of the crime, a jury will conclude (1) that both defendants are lying"
}
] | [
{
"docid": "23416651",
"title": "",
"text": "continued to sell cocaine in the “sales territory” assigned to Jennierose Lynch (Fitzgerald’s paramour). After several violent encounters, Boyden IV turned up dead. The government charged Fitzgerald, Lynch, and Herd — but not Houlihan — with that murder. As recounted earlier, the judge granted Fitzgerald’s motion for a mistrial on those charges (and he presumably remains subject to retrial); the judge ordered the charges against Lynch dropped as part of an overall plea bargain; and the jury acquitted Herd. The record strongly suggests that the son’s murder set the stage for the father’s murder, and that the killings were related. The government makes no effort to implicate Houlihan in the former crime, and there is only a tenuous set of inferences linking him to the latter crime. Virtually the only intimation that Houlihan may have played a role in the killing of Boyden III comes from Sargent’s tape-recorded statement during which the following colloquy transpired (references in the colloquy to “Boyden, Sr.” refer to James Boyden III): SARGENT: I was having a couple of drinks, and [Houlihan] mentioned ... that — -that there’s two .!. that’s going to go. H» H* H» 4» H* H« ... John Houlihan mentioned before that he could have somebody kill anybody he wants. Hi # H< # * DET. HARRIS: There was the homicide of James Boyden, Sr. SARGENT: Right. DET. HARRIS: Would you tell us about that homicide? SARGENT: All I know is when I had talked to John in the bar, he had mentioned there was going to be two ... people dead, and that night — that same night that I talked to him, that’s when Boyden Sr. got killed ... DET. HARRIS: How many hours before Boyden Sr. was killed did that conversation with [Houlihan] take place? SARGENT: I’d say about three hours. Passing obvious questions about the reliability of this uncorroborated hearsay statement, see supra note 7 & accompanying text, this seems too porous a foundation on which to rest homicide charges. Laying out the inferential chain on which the government’s theory depends illustrates its weakness. From the dialogue"
},
{
"docid": "23416656",
"title": "",
"text": "the murder of James Boyden IV. Houlihan and Nardone contend that the court had an obligation to sever their trials from the trial of the counts relating to the Boyden IV murder. We disagree. When several defendants are named in a unified indictment, there is a strong presumption that they should be tried together. See Zafiro v. United States, 506 U.S. 534, 538-39, 113 S.Ct. 933, 937-88, 122 L.Ed.2d 317 (1993); O’Bryant, 998 F.2d at 25. To obtain a severance under such circumstances, a defendant must demonstrate extreme prejudice, such as by showing a “serious risk that a joint trial would compromise a specific trial right,” or would “prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539, 113 S.Ct. at 938. Houlihan and Nardone cannot scale these heights. Their central thesis is that the government’s evidence concerning the Boyden IV murder tended to show that the victim was slaughtered in an organization-related turf battle, and therefore threatened to infect the jury’s consideration of other counts. But they dress this thesis in the gossamer vestments of speculation and surmise. That is not enough. “There is always some prejudice in any trial where more than one offense or offender are tried together— but such ‘garden variety’ prejudice, in and of itself, will not suffice” as a basis for obligatory severance. Boylan, 898 F.2d at 246. To be sure, there is a gray area in which reasonable people might disagree about the advisability of a severance. In the vast majority of those cases, however, the severance battle is conclusively won or lost in the district court. See O’Bryant, 998 F.2d at 25 (explaining that the court of appeals ordinarily should defer to the district court’s evaluation of the necessity for separate trials); United States v. Natanel, 938 F.2d 302, 308 (1st Cir.1991) (holding that a denial of severance will only be reversed for a “manifest abuse of discretion”), cert. denied, 502 U.S. 1079, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992). This case falls within the sweep of that generality, not within the long-odds exception to"
},
{
"docid": "23416593",
"title": "",
"text": "and reserve greater detail until the need arises to place specific issues into workable context. We draw our sketch in colors that coordinate with the jury’s verdicts, consistent with record support. See, e.g., United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992), cert. denied, 506 U.S. 1063, 113 S.Ct. 1005, 122 L.Ed.2d 154 (1993). For nearly four years Michael Fitzgerald and John Houlihan ran a ruthlessly efficient drug ring from an unlikely command post: Kerrigan’s Flower Shop, Charlestown, Massachusetts. The organization commanded the allegiance of numerous distributors, stationary and mobile, including Jennierose Lynch, William “Bud” Sweeney, George Sargent, and Alan Skinner. These minions, and others like them, helped the organization supply cocaine to hordes of buyers through an elaborate street-level distribution network that arranged most of its sales with the aid of electronic pagers, assigned customer codes, and preset rendezvous points. Fitzgerald and Houlihan imposed a strict code of silence on all who came into contact with them, including their own troops. They dealt severely with persons who seemed inclined to talk too freely. Joseph Nardone, a professional assassin who bragged that he was the “headache man” — when the organization’s chieftains had a headache, Nardone got rid of it — acted as the principal enforcer. Over time, the gang’s targets included Sargent, Sweeney (who survived multiple attempts on his life, but was left paralyzed from the chest down), a rival drug dealer, James Boyden III, and the latter’s son and helpmeet, James Boyden IV. The Fitzgerald-Houlihan axis dominated the Charlestown scene through 1993. Ultimately, the authorities broke the code of silence and a federal grand jury indicted twelve individuals (including Fitzgerald, Houlihan, and Nardone) on a myriad of charges. After trial, the two ringleaders and their enforcer were found guilty of engaging in a racketeering enterprise (count 1), racketeering conspiracy (count 2), conspiracy to commit murder in aid of racketeering (counts 5, 7 & 9), and conspiracy to distribute cocaine (count 20). See 18 U.S.C. §§ 1962(c) & (d), 1959(a); 21 U.S.C. § 846. The jury also convicted Fitzgerald and Houlihan of aiding and abetting murder and attempted"
},
{
"docid": "23416653",
"title": "",
"text": "that we have quoted, the government suggests that a jury could plausibly infer that Houlihan was referring to the upcoming murder of James Boyden III in his “two ... that’s going to go” comment; and that, from this inference, the jury could plausibly infer that Houlihan intended to bring about that murder and participated in it in some meaningful way. This is simply too great a stretch. Houlihan did not mention James Boyden III in his conversation with Sargent, and it is not even clear that Sargent understood Houlihan to be referring to any particular individuals. Rather, the import of Sargent’s comment seems to be that succeeding events filled in the blanks. And even if we accept the first suggested inference, the record hardly will support the further inference that Houlihan had a specific intent to murder James Boy-den III, or that he abetted the ensuing crime. At most, the conversation suggests an awareness of a planned slaying, not necessarily participation in it. The government tries to buttress these strained inferences by pointing to Sargent’s parroting of Houlihan’s statement that he “could have somebody kill anybody” and la-belling this as evidence that Houlihan directed the commission of this particular murder. But that argument proves too much. On the government’s reasoning, Houlihan could have been charged and convicted of any murder. The government also points out that, on the day after the murder, Nardone collected his fee at Kerrigan’s Flower Shop. Because this bore some resemblance to the method of payment that Houlihan employed after Nar-done murdered Sargent, see supra note 22, the government asks us to infer that Houli-han also must have arranged this payment. We think for two reasons that the suggested inference is dubious. First, the difference in payment methodology is significant: on the latter occasion (Sargent’s murder), the government proved that Houlihan personally paid the fee to Nardone; on the former occasion (Boyden the elder’s murder), it did not. Second, the record shows that Fitzgerald not only ordered the murder of James Boyden III but also, though imprisoned, remained in daily contact with Doherty, and that Doherty"
},
{
"docid": "23416681",
"title": "",
"text": "James Boyden IV continued to poach on her sales territory. Similarly, Boyden-Connors testified that Fitzgerald himself warned her to keep her brother away from Lynch's territory. Hannigan's testimony, overall, related more to the structure and operating practices of the Fitzgerald-Houlihan organization and less to the slaying of James Boyden IV. By way of illustration, Hannigan testified at length about Fitzgerald's presence at Kerrigan's Flower Shop, his meetings there with other members of the conspiracy, and his daily telephone calls to Doherty from his prison cell during the period of his immurement. . As an aside, we note that there is no inkling of any prejudice stemming from this ruling. For one thing, the jury acquitted Nardone on several counts, so it is impossible to argue convincingly that the unredacted information irretrievably poisoned the jurors against him. For another thing, given the powerful evidentiary strands that tied Nardone tightly to two hrutal murders and several other murder attempts, we doubt that the references about which he now complains could conceivably have altered the jury’s verdicts. . Nardone’s claim that he was an independent contractor is imaginative but unconvincing. The evidence supports the view that Nardone was an insider. He maintained regular contact with Fitzgerald and Houlihan throughout the duration of the conspiracy; he obtained his armaments directly from them; and he took orders from them. Indeed, Nardone's description of himself as the organization’s \"hit man” and \"headache man” belies his more recently manufactured “independent contractor” label. . The appellants also claim that the district court erred by refusing to repeat its concededly correct definition of what constitutes a racketeering \"enterprise” in its instructions to the jury on those counts that charged murder and attempted murder in aid of racketeering. Judge Young chose instead to incorporate by reference his correct definition of a RICO enterprise (given to the jury earlier in the charge); and, in the same vein, he specifically informed the jury that, as to all racketeering-related counts, they must find the existence of an enterprise meeting the statutory criteria as an element of each offense. In light of the perfectly"
},
{
"docid": "16797224",
"title": "",
"text": "out of a melange of factual assertions, opinions, and street rumors. Finally — -and perhaps most intriguing of all — having determined to admit redacted portions of these hearsay statements, the Court explains to what use it allowed the defendants to put the portions of the statements the Court ordered redacted. I. BACKGROUND This case involves the prosecution of twelve defendants alleged to be members of a ruthless cocaine trafficking enterprise. The defendants, or certain of them, were charged in a forty-eight count indictment with distribution of cocaine, conspiracy to distribute cocaine, engaging in a racketeering enterprise, racketeering conspiracy, three murders in furtherance of a racketeering enterprise, conspiracy to commit murder in furtherance of a racketeering enterprise, four attempted murders in furtherance of a racketeering enterprise, using firearms in relation to a federal crime of violence, engaging in a continuing criminal enterprise, and criminal forfeiture. Three of the defendants — John Houlihan (“Houlihan”), Michael Fitzgerald (“Fitzgerald”), and Joseph Nardone (“Nardone”) — were charged, inter alia, with murder in aid of racketeering for the homicide of George Sargent (“Sargent”), an alleged foot-soldier in the so-called criminal enterprise who, at the time of his murder, was cooperating with law enforcement authorities. The government alleged that, prior to his death, Sargent told law enforcement officers that he was a street distributer for a Charlestown narcotics ring allegedly run by Houlihan and Fitzgerald. In his conversations with police, Sargent described the structure of the Houlihan-Fitzgerald cocaine operation, his role in the organization, and how he became involved. Moreover, according to the government, Sargent made statements that inculpated Fitzgerald and Houlihan in the murder of James Boyden III (“Boyden Sr.”), and which inculpated Fitzgerald in the murder of James Boyden IV (“Boyden Jr.”), and the attempted murder of William “Bud” Sweeney (“Sweeney”). Sargent further made statements that indicated he feared Houlihan might want him killed, and told the police that in an attempt to protect himself he had stressed to Houlihan that he was “on his side.” On June 28, 1992, George Sargent was killed by multiple gunshot wounds. The government alleged that Houlihan and"
},
{
"docid": "16797225",
"title": "",
"text": "George Sargent (“Sargent”), an alleged foot-soldier in the so-called criminal enterprise who, at the time of his murder, was cooperating with law enforcement authorities. The government alleged that, prior to his death, Sargent told law enforcement officers that he was a street distributer for a Charlestown narcotics ring allegedly run by Houlihan and Fitzgerald. In his conversations with police, Sargent described the structure of the Houlihan-Fitzgerald cocaine operation, his role in the organization, and how he became involved. Moreover, according to the government, Sargent made statements that inculpated Fitzgerald and Houlihan in the murder of James Boyden III (“Boyden Sr.”), and which inculpated Fitzgerald in the murder of James Boyden IV (“Boyden Jr.”), and the attempted murder of William “Bud” Sweeney (“Sweeney”). Sargent further made statements that indicated he feared Houlihan might want him killed, and told the police that in an attempt to protect himself he had stressed to Houlihan that he was “on his side.” On June 28, 1992, George Sargent was killed by multiple gunshot wounds. The government alleged that Houlihan and Fitzgerald ordered Nardone to commit the murder because, among other things, they feared that Sargent was talking to the police about Houlihan and Fitzgerald’s criminal conduct. Prior to the commencement of the proceedings, the government moved in limine to introduce at trial Sargent’s statements to the police despite the fact that Sargent was obviously unable to take the stand and therefore could not be subject to cross-examination by the defense. In support of the motion, the government argued that by murdering Sargent for the purpose of preventing him from cooperating with law enforcement authorities, Fitzgerald, Houlihan, and Nardone waived their rights to object to the admission of Sargent’s out-of-court declarations. The government explained that, if admitted, Sargent’s prior statements would be used to prove Fitzgerald’s involvement in the murders of Boyden Jr., Boyden Sr., and Sargent himself, as well as his involvement in the conspiracy to distribute cocaine and in a continuing criminal enterprise; to prove Houlihan’s involvement in the murders of Sargent and Boyden Sr., and his involvement in the drug conspiracy and in"
},
{
"docid": "23416680",
"title": "",
"text": "note 19. The grand jury testimony was not admitted at the trial. . Ironically, none of the counts related to this murder bore fruit: the jury found Herd not guilty; the court relieved Lynch of responsibility when she pleaded guilty to other counts; and the court granted Fitzgerald a mistrial. . The court enhanced the efficacy of the limiting instructions by insisting that all the government's evidence relating to this murder be presented compactly at the same point in the trial. This is a salutary practice, and we commend it generally to trial courts confronted with analogous situations. . Of course, these witnesses did not emerge unscathed. Ford and McDonald were vigorously cross-examined by counsel for the.implicated defendants, Fitzgerald included. . The witnesses in question are Veronica Boy-den (the mother of James Boyden IV), Marie Boyden-Connors (his sister), and Frances Hanni-gan (a former owner of Kerrigan's Flower Shop). . A few examples may assist in giving texture to this conclusion. Veronica Boyden testified that she heard Lynch, an indicted coconspirator, threaten to call Fitzgerald if James Boyden IV continued to poach on her sales territory. Similarly, Boyden-Connors testified that Fitzgerald himself warned her to keep her brother away from Lynch's territory. Hannigan's testimony, overall, related more to the structure and operating practices of the Fitzgerald-Houlihan organization and less to the slaying of James Boyden IV. By way of illustration, Hannigan testified at length about Fitzgerald's presence at Kerrigan's Flower Shop, his meetings there with other members of the conspiracy, and his daily telephone calls to Doherty from his prison cell during the period of his immurement. . As an aside, we note that there is no inkling of any prejudice stemming from this ruling. For one thing, the jury acquitted Nardone on several counts, so it is impossible to argue convincingly that the unredacted information irretrievably poisoned the jurors against him. For another thing, given the powerful evidentiary strands that tied Nardone tightly to two hrutal murders and several other murder attempts, we doubt that the references about which he now complains could conceivably have altered the jury’s verdicts. ."
},
{
"docid": "23416646",
"title": "",
"text": "accused know that such a facility probably will be used. See Edelman, 873 F.2d at 795; see also United States v. Heacock, 31 F.3d 249, 255 n. 10 (5th Cir.1994) (applying identical principle under Travel Act); United States v. Sigalow, 812 F.2d 783, 785 (2d Cir.1987) (same); United States v. McPartlin, 595 F.2d 1321, 1361 (7th Cir.) (same), cert. denied, 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1979). Hence, if the government proves that one of the participants used the telephone or some comparable interstate facility in furtherance of the scheme, then the required facilitative nexus is established as to all participants. In this case, we think that the jury rationally could find a facilitative nexus between the use of telephones and the criminal activities underlying the counts of conviction. By March of 1992, Fitzgerald, a parole violator, had taken up involuntary residence in a state penitentiary. The record, together with reasonable inferences extractable therefrom, permitted the jury to find that he made daily telephone calls from prison to an indicted coconspirator, John Doherty, at Kerri-gan’s Flower Shop; and that Doherty, acting as Fitzgerald’s internuncio, supplied Nardone with the weaponry needed to mount the attacks. Telephone records introduced into evidence also indicate that Fitzgerald called Nardone several times at Lynch’s apartment in and around the dates on which the murders were to occur. Since the jury reasonably could regard the various calls as an important link in the communicative chain that led to murder and attempted murder, the appellants’ challenge founders. B. The Murder of James Boyden III. Houlihan asserts that his convictions on count 5 (conspiring to murder James Boyden III in aid of racketeering), count 6 (abetting that murder), and count 15 (hiring another to perform that murder) cannot stand. His major theme is that the government failed to link him to the murder in any meaningful way. We find merit in this proposition. To convict Houlihan for conspiring to murder in aid of racketeering, see 18 U.S.C. § 1959(a), or for abetting the murder, see id., the government had to prove that (1) the organization"
},
{
"docid": "23416594",
"title": "",
"text": "Joseph Nardone, a professional assassin who bragged that he was the “headache man” — when the organization’s chieftains had a headache, Nardone got rid of it — acted as the principal enforcer. Over time, the gang’s targets included Sargent, Sweeney (who survived multiple attempts on his life, but was left paralyzed from the chest down), a rival drug dealer, James Boyden III, and the latter’s son and helpmeet, James Boyden IV. The Fitzgerald-Houlihan axis dominated the Charlestown scene through 1993. Ultimately, the authorities broke the code of silence and a federal grand jury indicted twelve individuals (including Fitzgerald, Houlihan, and Nardone) on a myriad of charges. After trial, the two ringleaders and their enforcer were found guilty of engaging in a racketeering enterprise (count 1), racketeering conspiracy (count 2), conspiracy to commit murder in aid of racketeering (counts 5, 7 & 9), and conspiracy to distribute cocaine (count 20). See 18 U.S.C. §§ 1962(c) & (d), 1959(a); 21 U.S.C. § 846. The jury also convicted Fitzgerald and Houlihan of aiding and abetting murder and attempted murder in aid of racketeering (counts 6, 8,11 & 12), instigating murder for hire (counts 15, 16 & 17), engaging in a continuing criminal enterprise (count 19), and distributing cocaine (counts 21 through 29). See 18 U.S.C. §§ 1959(a), 1958; 21 U.S.C. §§ 848, 841(a)(1). The jury found Nardone guilty of murder and attempted murder in aid of racketeering (counts 6, 8, 11 & 12), see 18 U.S.C. § 1959(a), and using and carrying a firearm during and in relation to crimes of violence (counts 39, 40, 42 & 43), see 18 U.S.C. § 924(c). The jury also returned special forfeiture verdicts. See 18 U.S.C. § 1963; 21 U.S.C. § 853. The district court sentenced each defendant to multiple terms of life imprisonment. These appeals blossomed. II. THE VOICE FROM THE GRAVE The district court admitted over objection portions of hearsay statements made by George Sargent on the theory that Sargent’s murder constituted a waiver of the Confrontation Clause vis-a-vis the murderers. Houlihan and Nardone assign error to this order and to a salmagundi of"
},
{
"docid": "23416658",
"title": "",
"text": "it. Not only is the inference of undue prejudice that the appellants seek to draw somewhat attenuated, but also any possible prejudice was dissipated by the trial court’s firm, carefully worded, and oft-repeated instructions to the jurors, forbidding them from considering the evidence anent the murder of Boyden the younger in deciding the charges against either Houlihan or Nardone. On this record, we are confident that the trial court did not abuse its considerable discretion in denying the requested severance. See, e.g., O’Bryant, 998 F.2d at 25; United States v. Gomez-Pabon, 911 F.2d 847, 859-60 (1st Cir.1990), cert. denied, 498 U.S. 1074, 111 S.Ct. 801, 112 L.Ed.2d 862 (1991). D. The Ford/McDonald Conundrum. At trial the government called Steven Ford and Edwin McDonald as witnesses regarding the murder of James Boyden IV. Houlihan and Nardone successfully solicited limiting instructions. Prior to each witness’s testimony Judge Young admonished the jury that the testimony was admissible only against Fitzgerald, Herd, and Lynch, and not against Houlihan or Nardone. Notwithstanding these limiting instructions, Houlihan and Nardone asked to cross-examine Ford and McDonald. The court blocked that maneuver. Houlihan and Nardone press the point in this venue, alleging that the court’s ruling violated their confrontation rights and otherwise constituted an improper exercise of discretion. [44,45] To demonstrate a violation of the Confrontation Clause, a defendant must show that he was “prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” Van Arsdall, 475 U.S. at 680, 106 S.Ct. at 1436. Here, there was no abridgement of the defendants’ constitutional rights. The Confrontation Clause demands that a defendant have the opportunity to confront and cross-examine the witnesses against him; at least in the absence of special circumstances—and none appear here—the Clause does not create a right to confront or cross-examine persons who appear as witnesses exclusively against others (even if the others are codefendants in a joint trial). Because neither Ford nor McDonald was a witness “against” either Houlihan or Nardone, the constitutional claim is stillborn. Absent a constitutional violation, “appellate courts will grant"
},
{
"docid": "23416650",
"title": "",
"text": "crime,” and that he had the “specific intent” of causing the murder. We have combed the record in light of this highly specific subset of charges to determine whether the government satisfied its burden of proving beyond a reasonable doubt that Houlihan perpetrated these three interrelated crimes. We have come up empty. In our judgment there is insufficient evidence that Houlihan, whatever other atrocities he may have committed, intended to bring about the execution of James Boyden III, or that he participated in any culpable way in the commission of that crime. The evidence depicts Fitzgerald as the leader of the organization and Houlihan as his second-in-command. The government’s theory is that Nardone killed Boyden III, and that Fitzgerald and Houlihan jointly directed him to do so. But the government’s star witness, Nelson, testified that, according to Nardone, Fitzgerald alone ordered the murder. This seems reasonable in view of the fact that the murder grew out of events surrounding the assassination of the victim’s son (Boyden IV). The younger Boyden, against Fitzgerald’s explicit warning, had continued to sell cocaine in the “sales territory” assigned to Jennierose Lynch (Fitzgerald’s paramour). After several violent encounters, Boyden IV turned up dead. The government charged Fitzgerald, Lynch, and Herd — but not Houlihan — with that murder. As recounted earlier, the judge granted Fitzgerald’s motion for a mistrial on those charges (and he presumably remains subject to retrial); the judge ordered the charges against Lynch dropped as part of an overall plea bargain; and the jury acquitted Herd. The record strongly suggests that the son’s murder set the stage for the father’s murder, and that the killings were related. The government makes no effort to implicate Houlihan in the former crime, and there is only a tenuous set of inferences linking him to the latter crime. Virtually the only intimation that Houlihan may have played a role in the killing of Boyden III comes from Sargent’s tape-recorded statement during which the following colloquy transpired (references in the colloquy to “Boyden, Sr.” refer to James Boyden III): SARGENT: I was having a couple of drinks,"
},
{
"docid": "23416654",
"title": "",
"text": "parroting of Houlihan’s statement that he “could have somebody kill anybody” and la-belling this as evidence that Houlihan directed the commission of this particular murder. But that argument proves too much. On the government’s reasoning, Houlihan could have been charged and convicted of any murder. The government also points out that, on the day after the murder, Nardone collected his fee at Kerrigan’s Flower Shop. Because this bore some resemblance to the method of payment that Houlihan employed after Nar-done murdered Sargent, see supra note 22, the government asks us to infer that Houli-han also must have arranged this payment. We think for two reasons that the suggested inference is dubious. First, the difference in payment methodology is significant: on the latter occasion (Sargent’s murder), the government proved that Houlihan personally paid the fee to Nardone; on the former occasion (Boyden the elder’s murder), it did not. Second, the record shows that Fitzgerald not only ordered the murder of James Boyden III but also, though imprisoned, remained in daily contact with Doherty, and that Doherty (who was based at Kerrigan’s) or any of several other underlings could have arranged the payment. Even so, given the working relationship between Houlihan and Fitzgerald and their use of Nardone as a triggerman in connection with Sargent’s murder and the attempts on Sweeney’s life, the question of evidentiary sufficiency is close. In the end, however, we do not think that the evidence measures up to the requirement — which we apply de novo — that a reasonable jury be able to find each element of the crime to have been proven beyond a reasonable doubt. Given Nelson’s uncontradicted testimony that only one individual — Fitzgerald-—sanctioned the execution of James Boyden III, and also given the nexus between the Boydens’ murders, we believe that the chain of inferences forged by the prosecution is too loose (albeit by the slimmest of margins) to hold Houlihan criminally responsible for the charged crimes. C. Severance. The reader will recall that the indictment charged Herd, Lynch, and Fitzgerald — but not Houlihan and Nardone — with offenses related to"
},
{
"docid": "23416647",
"title": "",
"text": "Doherty, at Kerri-gan’s Flower Shop; and that Doherty, acting as Fitzgerald’s internuncio, supplied Nardone with the weaponry needed to mount the attacks. Telephone records introduced into evidence also indicate that Fitzgerald called Nardone several times at Lynch’s apartment in and around the dates on which the murders were to occur. Since the jury reasonably could regard the various calls as an important link in the communicative chain that led to murder and attempted murder, the appellants’ challenge founders. B. The Murder of James Boyden III. Houlihan asserts that his convictions on count 5 (conspiring to murder James Boyden III in aid of racketeering), count 6 (abetting that murder), and count 15 (hiring another to perform that murder) cannot stand. His major theme is that the government failed to link him to the murder in any meaningful way. We find merit in this proposition. To convict Houlihan for conspiring to murder in aid of racketeering, see 18 U.S.C. § 1959(a), or for abetting the murder, see id., the government had to prove that (1) the organization masterminded by Fitzgerald and Houlihan constituted a racketeering enterprise; (2) that, depending on the count, Houlihan conspired to commit, or aided and abetted the commission of, the murder; and (3) that Houlihan participated in the arrangement “for the purpose of maintaining or increasing [his] position in a [racketeering] enterprise.” Id. By like token, under the murder-for-hire statute the government had to prove (1) that Houlihan joined in causing the killing of another, (2) paying a price or other consideration, (3) with the specific intent to commit the substantive crime (murder), and (4) that interstate facilities were used by one or more of the participants in the course of perpetrating the crime. See 18 U.S.C. § 1958. A common thread runs through all three counts. In one form or another, the government had to prove beyond a reasonable doubt that in the spring of 1992 Houlihan “conspired to murder James Boyden III” (count 5), and/or “aided, abetted, counselled, commanded [or] induced” that murder (count 6), and/or used “facilities in interstate commerce ... to hire other individuals"
},
{
"docid": "23416657",
"title": "",
"text": "dress this thesis in the gossamer vestments of speculation and surmise. That is not enough. “There is always some prejudice in any trial where more than one offense or offender are tried together— but such ‘garden variety’ prejudice, in and of itself, will not suffice” as a basis for obligatory severance. Boylan, 898 F.2d at 246. To be sure, there is a gray area in which reasonable people might disagree about the advisability of a severance. In the vast majority of those cases, however, the severance battle is conclusively won or lost in the district court. See O’Bryant, 998 F.2d at 25 (explaining that the court of appeals ordinarily should defer to the district court’s evaluation of the necessity for separate trials); United States v. Natanel, 938 F.2d 302, 308 (1st Cir.1991) (holding that a denial of severance will only be reversed for a “manifest abuse of discretion”), cert. denied, 502 U.S. 1079, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992). This case falls within the sweep of that generality, not within the long-odds exception to it. Not only is the inference of undue prejudice that the appellants seek to draw somewhat attenuated, but also any possible prejudice was dissipated by the trial court’s firm, carefully worded, and oft-repeated instructions to the jurors, forbidding them from considering the evidence anent the murder of Boyden the younger in deciding the charges against either Houlihan or Nardone. On this record, we are confident that the trial court did not abuse its considerable discretion in denying the requested severance. See, e.g., O’Bryant, 998 F.2d at 25; United States v. Gomez-Pabon, 911 F.2d 847, 859-60 (1st Cir.1990), cert. denied, 498 U.S. 1074, 111 S.Ct. 801, 112 L.Ed.2d 862 (1991). D. The Ford/McDonald Conundrum. At trial the government called Steven Ford and Edwin McDonald as witnesses regarding the murder of James Boyden IV. Houlihan and Nardone successfully solicited limiting instructions. Prior to each witness’s testimony Judge Young admonished the jury that the testimony was admissible only against Fitzgerald, Herd, and Lynch, and not against Houlihan or Nardone. Notwithstanding these limiting instructions, Houlihan and Nardone asked to"
},
{
"docid": "23416648",
"title": "",
"text": "masterminded by Fitzgerald and Houlihan constituted a racketeering enterprise; (2) that, depending on the count, Houlihan conspired to commit, or aided and abetted the commission of, the murder; and (3) that Houlihan participated in the arrangement “for the purpose of maintaining or increasing [his] position in a [racketeering] enterprise.” Id. By like token, under the murder-for-hire statute the government had to prove (1) that Houlihan joined in causing the killing of another, (2) paying a price or other consideration, (3) with the specific intent to commit the substantive crime (murder), and (4) that interstate facilities were used by one or more of the participants in the course of perpetrating the crime. See 18 U.S.C. § 1958. A common thread runs through all three counts. In one form or another, the government had to prove beyond a reasonable doubt that in the spring of 1992 Houlihan “conspired to murder James Boyden III” (count 5), and/or “aided, abetted, counselled, commanded [or] induced” that murder (count 6), and/or used “facilities in interstate commerce ... to hire other individuals and to arrange the intended murder of James Boy-den III” (count 15). Under each of these counts, the government had to show at a bare minimum that Houlihan intended the murder of James Boyden III to take place and that he acted upon that intent. See, e.g., United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.) (explaining that proof of a charged conspiracy requires, inter alia, proof of intent to commit the substantive offense), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 576 & 493 U.S. 832, 110 S.Ct. 105, 107 L.Ed.2d 68 (1989); United States v. Loder, 23 F.3d 586, 591 (1st Cir.1994) (stating that an aider and abettor must “consciously share[ ] the specific criminal intent of the principals”); 18 U.S.C. § 1958 (specifically requiring proof that the defendant acted with “intent that a murder be committed”). In other words, as Judge Young instructed the jury, the government had to show that Houlihan “intentionally arranged for the murder of James Boyden III by Joseph Nardone,” or “aided and abetted that"
},
{
"docid": "23416615",
"title": "",
"text": "U.S. 849, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990). So it is here. Houlihan and Nardone dwell on incompleteness primarily because Judge Young declared two sets of comments inadmissible. (1) Sargent told the police, inter alia, that James Boyden IV was selling drugs in Lynch’s territory; that Fitzgerald warned him and had him beaten, but to no avail; and that he then told Sargent that he would “just have to kill” the interloper. Claiming that Fitzgerald’s remarks to Sargent provided Fitzgerald with a different motive to murder Sargent, Houlihan sought to have this part of Sargent’s statement admitted into evidence. Houlihan claims that omitting references to Fitzgerald’s involvement in the murder made it appear that he, rather than Fitzgerald, was the mastermind responsible for that crime. (2) In a similar vein, Nardone claims that the court’s refusal to permit him to introduce references in the interviews to Herd’s putative involvement in the Boydens’ killings made it appear that Nardone carried out those murders single-handed. The court found that these incremental excerpts were “segregable” from the portions of the interviews that the government had proffered and denied the appellants’ requests to admit them. Houlihan, 887 F.Supp. at 366. In assessing the court’s rulings, three facts are worthy of note: (1) the interview segments admitted into evidence contained no explicit reference whatever to the Boydens’ murders; (2) neither Houlihan nor Nardone were charged with the slaying of James Boyden IV; and (3) Sargent never mentioned Nardone by name anywhere in the course of either debriefing. Bearing these facts in mind, we conclude that the lower court acted within the realm of its discretion in refusing to invoke Rule 106. Houlihan and Nardone also claim that the court should have admitted other portions of Sargent’s interviews to impeach his credibility. See Fed.R.Evid. 806 (providing that the credibility of a hearsay declarant “may be attacked ... by any evidence which would be admissible for those purposes if [the] declar-ant had testified as a witness”). The district court rejected this claim because it found the additional excerpts “too convoluted, collateral, or cumulative to be admitted.”"
},
{
"docid": "23416679",
"title": "",
"text": "who appeared before the grand jury. . Respecting, as we do, the coordinate powers of the other two branches of government, we decline to issue any such blanket proscription. See supra Part IV(A) (discussing particulars of appellants' underlying objection). . The exception relates to count 15, as to which Houlihan offers a wider-ranging sufficiency challenge. We address that challenge separately. See infra Part V(B). . Although not an element of the offense, it is pellucid that the jury easily could have believed Fitzgerald’s actions vis-á-vis Sargent and Sweeney were undertaken with Houlihan’s knowledge and consent. To cite just one example, Houlihan personally paid Nardone his $5,000 \"headache elimination” fee at Kerrigan’s Flower Shop on the day after Nardone ended Sargent's life. Further examples are unnecessary. It suffices to say that extensive evidence pointed to the conclusion that Fitzgerald and Houlihan jointly orchestrated both Sargent's slaying and Sweeney’s travails. . Indeed, when it was pointed out that a grand jury witness had testified otherwise, the government protested that the witness had made a mistake. See supra note 19. The grand jury testimony was not admitted at the trial. . Ironically, none of the counts related to this murder bore fruit: the jury found Herd not guilty; the court relieved Lynch of responsibility when she pleaded guilty to other counts; and the court granted Fitzgerald a mistrial. . The court enhanced the efficacy of the limiting instructions by insisting that all the government's evidence relating to this murder be presented compactly at the same point in the trial. This is a salutary practice, and we commend it generally to trial courts confronted with analogous situations. . Of course, these witnesses did not emerge unscathed. Ford and McDonald were vigorously cross-examined by counsel for the.implicated defendants, Fitzgerald included. . The witnesses in question are Veronica Boy-den (the mother of James Boyden IV), Marie Boyden-Connors (his sister), and Frances Hanni-gan (a former owner of Kerrigan's Flower Shop). . A few examples may assist in giving texture to this conclusion. Veronica Boyden testified that she heard Lynch, an indicted coconspirator, threaten to call Fitzgerald if"
},
{
"docid": "23416655",
"title": "",
"text": "(who was based at Kerrigan’s) or any of several other underlings could have arranged the payment. Even so, given the working relationship between Houlihan and Fitzgerald and their use of Nardone as a triggerman in connection with Sargent’s murder and the attempts on Sweeney’s life, the question of evidentiary sufficiency is close. In the end, however, we do not think that the evidence measures up to the requirement — which we apply de novo — that a reasonable jury be able to find each element of the crime to have been proven beyond a reasonable doubt. Given Nelson’s uncontradicted testimony that only one individual — Fitzgerald-—sanctioned the execution of James Boyden III, and also given the nexus between the Boydens’ murders, we believe that the chain of inferences forged by the prosecution is too loose (albeit by the slimmest of margins) to hold Houlihan criminally responsible for the charged crimes. C. Severance. The reader will recall that the indictment charged Herd, Lynch, and Fitzgerald — but not Houlihan and Nardone — with offenses related to the murder of James Boyden IV. Houlihan and Nardone contend that the court had an obligation to sever their trials from the trial of the counts relating to the Boyden IV murder. We disagree. When several defendants are named in a unified indictment, there is a strong presumption that they should be tried together. See Zafiro v. United States, 506 U.S. 534, 538-39, 113 S.Ct. 933, 937-88, 122 L.Ed.2d 317 (1993); O’Bryant, 998 F.2d at 25. To obtain a severance under such circumstances, a defendant must demonstrate extreme prejudice, such as by showing a “serious risk that a joint trial would compromise a specific trial right,” or would “prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539, 113 S.Ct. at 938. Houlihan and Nardone cannot scale these heights. Their central thesis is that the government’s evidence concerning the Boyden IV murder tended to show that the victim was slaughtered in an organization-related turf battle, and therefore threatened to infect the jury’s consideration of other counts. But they"
},
{
"docid": "23416649",
"title": "",
"text": "and to arrange the intended murder of James Boy-den III” (count 15). Under each of these counts, the government had to show at a bare minimum that Houlihan intended the murder of James Boyden III to take place and that he acted upon that intent. See, e.g., United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.) (explaining that proof of a charged conspiracy requires, inter alia, proof of intent to commit the substantive offense), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 576 & 493 U.S. 832, 110 S.Ct. 105, 107 L.Ed.2d 68 (1989); United States v. Loder, 23 F.3d 586, 591 (1st Cir.1994) (stating that an aider and abettor must “consciously share[ ] the specific criminal intent of the principals”); 18 U.S.C. § 1958 (specifically requiring proof that the defendant acted with “intent that a murder be committed”). In other words, as Judge Young instructed the jury, the government had to show that Houlihan “intentionally arranged for the murder of James Boyden III by Joseph Nardone,” or “aided and abetted that crime,” and that he had the “specific intent” of causing the murder. We have combed the record in light of this highly specific subset of charges to determine whether the government satisfied its burden of proving beyond a reasonable doubt that Houlihan perpetrated these three interrelated crimes. We have come up empty. In our judgment there is insufficient evidence that Houlihan, whatever other atrocities he may have committed, intended to bring about the execution of James Boyden III, or that he participated in any culpable way in the commission of that crime. The evidence depicts Fitzgerald as the leader of the organization and Houlihan as his second-in-command. The government’s theory is that Nardone killed Boyden III, and that Fitzgerald and Houlihan jointly directed him to do so. But the government’s star witness, Nelson, testified that, according to Nardone, Fitzgerald alone ordered the murder. This seems reasonable in view of the fact that the murder grew out of events surrounding the assassination of the victim’s son (Boyden IV). The younger Boyden, against Fitzgerald’s explicit warning, had"
}
] |
689770 | of Missouri to disregard the otherwise duly established provisions of State law and order that the sales tax license be immediately reinstated. Notwithstanding the absence of cause to grant the Debtor’s request for immediate relief, a review of the applicable reinstatement statute has disclosed that all back sales taxes must be paid by a former licensee prior to a reinstatement. See, § 144.083 R.S.Mo.1986. The Court finds this requirement to be a condition of reinstatement which is violative of 11 U.S.C. § 362 if applied in these circumstances, in that it requires pre-petition taxes to be paid in full before the agency will reinstate the license. See, e.g., In re William Tell II, Inc., 38 B.R. 327 (N.C.Ill.1983); REDACTED Therefore, the Court has directed from the bench that the failure by a Debtor-In-Possession to immediately pay all pre-petition sales taxes cannot be the sole basis to refuse to reinstate a sales tax license. After the Court announced its Orders from the bench and solicited suggestions for an expedited procedure for processing the Debtor’s request for reinstatement of the sales tax license, counsel for both parties indicated that the previous forfeiture of the Debtor’s corporate charter would prevent reinstatement of the license to a former licensee which is engaged solely in winding up its business affairs. The Court then announced that the Debtor-In-Possession is an entity which is attempting to reorganize under the Bankruptcy Code, and that the State of Missouri is | [
{
"docid": "4752999",
"title": "",
"text": "the estate. The following shall constitute findings of fact and conclusions of law pursuant to Rule 752 of the Federal Rules of Bankruptcy Procedure. The parties have stipulated to the following facts. On January 10, 1980, Nashville White Trucks filed a voluntary Chapter 11 petition in this court. Nashville White Trucks continued to operate its business as a debtor-in-possession under Chapter 11 of the Bankruptcy Code from January 10, 1980, until July 2, 1980. During this time, the debtor-in-possession accrued approximately $13,817.57 in unpaid sales and use taxes, penalties and interest. The records maintained by the debtor-in-possession indicate that Nashville White Trucks charged sales taxes on all taxable transactions incurred while operating under Chapter 11. These tax funds were not placed in a separate segregated account but instead were deposited in the general operating account of the debtor-in-possession. On July 2, 1980, this court appointed Irwin A. Deutscher as trustee for the estate of Nashville White Trucks. Since his appointment, the trustee has submitted monthly sales and use tax returns to the Tennessee Department of Revenue summarizing the continued operations of Nashville White Trucks and has paid to the Tennessee Department of Revenue all sales and use taxes which have accrued during the trustee’s administration of the estate. The trustee has, however, refused to remit the sales and use taxes accumulated by the debtor-in-possession prior to July 2, 1980. The trustee’s action prompted Tennessee’s Commissioner of Revenue to institute this adversary proceeding. As of the present date, no plan of reorganization has been filed in this case. The Commissioner initially attacks the constitutionality of the automatic stay imposed by 11 U.S.C. § 362 as applied to the Tennessee Department of Revenue. The automatic stay prohibits any entity, including a governmental unit, from pursuing any action to obtain possession of property of the estate during the pendency of a Chapter 11 reorganization proceeding , subject to certain restrictions which are not relevant herein. See In re Eisenberg, 7 B.R. 683, Bankr.L.Rep. (CCH) ¶ 68,514, at 80,241-80,-242 (Bkrtcy.E.D.N.Y.1980). The Commissioner specifically alleges that the automatic stay provisions violate both the tenth and"
}
] | [
{
"docid": "11587331",
"title": "",
"text": "that never came to pass. The plan itself referred to PCS licenses as the “Reinstated Licenses” throughout, defining them as those “Licenses as to which the FCC grants by Final Order the relief requested by the Debtor in the Petition for Reinstatement.” To the extent that the FCC would receive any future payment from Airadigm for “Allowed claims,” it would only occur “[o]n the Reinstatement Payment Date,” meaning the “third Business Day after the” FCC reinstated the licenses. Finally, the plan set out contingencies should the FCC reinstate the licenses before June 2002, but made no provision for anything after this date. A potential creditor transacting with Aira-digm after June 2002 could not look to the plan to determine any other creditor’s potential interests in the licenses because the plan did not purport to affect the licenses in any way if the FCC did not reinstate them before June 2002. As a result, the 2000 plan did not “deal[ ] with” the licenses in the event that the FCC did not reinstate them, and this Court’s rule from Penrod does not control. B. Applicability of the “Strong Arm” Provision to the FCC’s Interests Airadigm also appeals the lower courts’ conclusions that the FCC’s liens could not be avoided under § 544(a) of the bankruptcy code, a decision regarding a mixed question of law and fact that we review de novo. Mungo, 355 F.3d at 974. Airadigm, as the debtor-in-possession, has the “rights and powers of ... a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien” on the property in question. 11 U.S.C. § 544(a)(1). This “strong arm” power functions much like a foreclosure. If at the time of Aira-digm’s filing some hypothetical unsecured creditor could have obtained a judicial lien superior to the interest of the party bringing a secured claim in the bankruptcy proceeding, the estate can avoid the interest. See In re Leonard, 125 F.3d 543, 545 (7th Cir.1997). But unlike a regular foreclosure, the"
},
{
"docid": "8387815",
"title": "",
"text": "JAMES L. GARRITY, Jr., Bankruptcy Judge. Leo C. Aloi (“Aloi”) seeks an order pursuant to § 1112(b). of the Bankruptcy Code (“Code”) dismissing this voluntary chapter 11 case. Alternatively, he seeks an order pursuant to § 362(d)(1) of the Code annulling ’the automatic stay to give effect to his purchase of debtor’s sole asset (defined below as the “Building”) at a post-petition foreclosure sale innocently conducted by Aloi in violation of the stay. As a final alternative, pursuant to § 543(d) of the Code Aloi seeks to excuse the state court appointed receiver of rents and profits of the Building from complying with the turnover provisions of § 543(b) and an order pursuant to §§ 363(c)(2) and (e) of the Code prohibiting debtor from utilizing his cash collateral. For the reasons stated herein, we deny Aloi’s motion except that pursuant to § 543(d) the receiver is excepted from the turnover provisions of § 543(b) of the Code. Aloi has consented to the receiver’s use of cash collateral to the extent necessary to pay normal operating costs of the Building. Facts The facts as established during the eviden-tiary hearing on this motion are as follows. Debtor is a New York corporation wholly owned by Eric Wright. By proclamation of the New York Secretary of State dated June 29,1994, debtor was dissolved and its charter was forfeited pursuant to § 203-a of the New York State Tax Law (“Tax Law”) for failing to pay its franchise taxes. To date, debtor has taken no steps to reinstate its charter, see Tax Law § 203-a(7), or to wind up its affairs in accordance with Tax Law § 203-a(10) and New York Business Corporation Law § 1005(a)(1). Debtor’s sole asset is a building located at 41 St. Nicholas Terrace, New York, New York (the “Building”). Aloi is a 76 year old retired New York City policeman. He holds a perfected first mortgage on the Building in the sum of at least $219,000 on account of a short term $180,000 loan he made to debtor on or about April 14, 1992. In or about December 1994,"
},
{
"docid": "8387821",
"title": "",
"text": "the Tax Law is to windup and liquidate its affairs. See N.Y.Tax Law § 203-a(10) (McKinney 1986); N.Y.Bus. Corp.Law § 1005(a)(1) (McKinney 1986). However, pursuant to § 203-a(7), debtor can have its corporate charter reinstated and all dissolution proceedings annulled by paying the tax arrearages. N.Y.Tax Law § 203-a(7) (McKinney Supp.1995). See Propp v. Chaya Amusement Corp., 155 A.D.2d 251, 546 N.Y.S.2d 628 (N.Y.App.Div.1989). Wright’s undisputed testimony was that debtor will promptly do so. Thus, debtor is not necessarily precluded from rehabilitating its business. Compare In re Cedar Tide Corp., 859 F.2d 1127, 1128 (2d Cir.1988), cert. denied, 490 U.S. 1035, 109 S.Ct. 1933, 104 L.Ed.2d 405 (1989). Aloi contends that the timing of the filing of debtor’s chapter 11 petition evidences an intent to abuse the protection afforded by the Code. Wright concedes that the chapter 11 petition was filed to forestall Aloi’s foreclosure sale. However, his uncontested testimony was that debtor intends to reorganize and that the petition was not filed until August 30, 1995, because he did not learn of the order of foreclosure and sale until August 29. In this circuit, “[f]iling a bankruptcy petition with the intent to frustrate creditors does not by itself ‘establish an absence of intent to seek rehabilitation.’” Matter of Cohoes Indus. Terminal, Inc., 931 F.2d 222, 228 (2d Cir.1991) (citation omitted). Additionally, Aloi failed to adduce evidence of a loss or diminution to the estate. Accordingly, he is not entitled to relief under § 1112(b)(1). Under § 1112(b)(2) of the Code, the court may “dismiss or convert a case if [it] determines that it is unreasonable to expect that a plan can be confirmed in a chapter 11 case.” 5 Collier on Bankruptcy ¶ 1112.03[ii] at 1112-20. Thus, courts will dismiss chapter 11 cases under this section where “the debtor lacks the ability to formulate a plan or carry one out.” Hall v. Vance, 887 F.2d 1041, 1044 (10th Cir.1989); In re Martin, 113 B.R. 949, 961 (Bankr.N.D.Ill.1990), vacated on other grounds, 124 B.R. 69 (N.D.Ill.1991). Aloi concedes that at this early stage of the case it is premature to"
},
{
"docid": "10222127",
"title": "",
"text": "the court below. In In re Aegean Fare, Inc., supra, a municipal licensing board refused to renew a liquor license held by a Chapter 11 debtor on the basis of a Massachusetts statute which forbade the renewal of a license without a certificate from the Commonwealth indicating that taxes were paid to date. Relying on the pecuniary/police distinction articulated by the Supreme Court in Perez, the bankruptcy court held the provisions of the Massachusetts statute to be at cross purposes to federal bankruptcy law, thus repugnant to the Supremacy Clause, and therefore, stayed by operation of 11 U.S.C. § 362(a)(1). “This statute is not a valid exercise of the Commonwealth’s police power but rather is an action that seeks the obtainment of a pecuniary advantage by doing indirectly that which the Commonwealth is prohibited from doing directly.” In re Aegean Fare, Inc., 35 B.R. at 928. To like effect, In re Anderson, 15 B.R. 399, 401 (Bankr.S.D.Miss.1981) applied the teachings of Perez to order a state licensing authority to renew a debtor’s liquor license. The state’s objection that renewal was contraindicated because the debtor was delinquent on its taxes was summarily rejected. And, in In re William Tell II, Inc., supra, the district court affirmed a bankruptcy court order directing the Illinois State Liquor Control Commission to issue the debtor a license despite the existence of tax obligations which (by state statute) had to be satisfied prior to the issuance of a renewed permit. Id., 38 B.R. at 330. Finally, the bankruptcy court in this district has held that a municipal licensing board’s attempted revocation of a liquor license, based upon the debtor’s failure to be open for business, is subject to the automatic stay. The bankruptcy court concluded that the absence of business activity did not imperil the health or safety of the citizenry, nor did it violate any consumer, environmental, or other (kindred) law. Accordingly,, the § 362(b)(4) exception did not apply. In re Gencarelli, supra. The Gen-carelli court carefully reviewed those cases which have recognized the § 362(b)(4) exception, and the results of its survey are instructive:"
},
{
"docid": "21460801",
"title": "",
"text": "us, CCI has argued that Cedar Tide’s bankruptcy petition and the adversary proceeding brought against CCI must be dismissed because the bankruptcy court lacked subject matter jurisdiction over a corporation dissolved by New York State for failure to pay taxes. According to CCI, a dissolved corporation is not an entity which may seek reorganization under Chapter 11. We disagree. Under New York Tax Law § 203-a(3) (McKinney 1986), the secretary of state may dissolve a corporation by proclamation for failure to pay corporate franchise taxes. Under New York Business Corporation Law § 1006(a) (McKinney 1986), [a] dissolved corporation ... may continue to function for the purpose of winding up the affairs of the corporation in the same manner as if the dissolution had not taken place.... In particular ... [t]he corporation may sue or be sued in all courts and participate in actions and proceedings, whether judicial, administrative, arbitrative or otherwise, in its corporate name, and process may be served by or upon it. Under New York Tax Law § 203-a(7) a dissolved corporation will be reinstated nunc pro tunc upon the filing with the department of state a certificate that all franchise taxes, penalties and interest charges have been paid and the payment of a fee to the secretary of state. There is no case law that clearly disposes of the question whether a New York corporation dissolved for non-payment of taxes may file a petition for reorganization under Chapter 11. Matter of Luftek, Inc., 6 B.R. 539 (B.Ct.E.D.N.Y.1980) held that a dissolved corporation may be a debtor under Chapter 7. However, the Luftek court based its conclusion upon its belief that “bankruptcy liquidation is not inconsistent with continued existence under section 1006 of the [Business Corporation Law] for purposes of winding up the affairs of the corporation.” 6 B.R. at 542 n. 3 (emphasis added). Neither Luftek nor the cases it relied on addressed the question of jurisdiction where the dissolved corporation seeks reorganization under Chapter 11 rather than liquidation under Chapter 7. Nor do the New York state cases cited by the parties provide a definite answer."
},
{
"docid": "13751834",
"title": "",
"text": "84 (Bankr.S.D.Ohio 1981). On the other hand, a court has said that a letter from a credit union announcing it would do no further business with the debtor unless the debt was reaffirmed would not have violated the automatic stay if it had been sent to the debtor’s attorney, [In re] Brown, 49 B.R. [558] at 561 [(Bkrtcy.M.D.Pa.1985)], and we have treated other communications that merely set forth the fact of the debt as amendable proofs of claim not voided by the automatic stay, see [In re] Sambo’s Restaurants, 754 F.2d [811] at 816 [(9th Cir.1985)]; County of Napa v. Franciscan Vineyards, Inc. (In re Franciscan Vineyards, Inc.) 597 F.2d 181, 182-83 (9th Cir.1979) (per curiam), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980). The only case I have uncovered which appears to be factually in point with the case at bar is In re Acosta, 181 B.R. 477 (Bkrtcy.D.Axiz.1995). In that case the trustee’s sale was orally continued various times during the pendency of a Chapter 13 bankruptcy by public proclamation as provided by Arizona law. The bankruptcy was subsequently dismissed for the reason that the debtors failed to provide the Chapter 13 trustee with proof that their 1993 state income tax return had been filed. The debtors thereafter promptly filed the tax return and moved to reinstate the bankruptcy. A trustee’s sale, however, was held in the interim and the beneficiary of the deed of trust received a trustee’s deed one day before the motion to reinstate was granted. Judge Mooreman concluded that a debtor emerging from bankruptcy was entitled to actual notice of a pending foreclosure and declared the deed void. He further specifically concluded that the pending motion for reinstatement of the bankruptcy was not material to his decision. It is the conclusion of this Court that the employment of the public proclamation process, which necessarily requires the attendance of the debtor or the debtor’s representative is violative of the automatic stay imposed by 11 U.S.C. § 362. In foreclosure sales of this nature it is often the case that the credit"
},
{
"docid": "4746464",
"title": "",
"text": "enacted Ark.Code Ann. § 4-27-1420 (Supp.1989), which provides that the Secretary of State may commence proceedings to “administratively dissolve” a corporation if the corporation has not paid its franchise taxes within sixty days after they are due. Ark.Code Ann. § 26-54-110 (Supp.1989) provides that, before a corporation can be dissolved, the corporation must pay any franchise taxes that are due. If the forfeiture of a corporate charter effected a dissolution of the corporation, there would be no need for the alternative remedy of administrative dissolution and there would be no requirement for payment of the delinquent taxes prior to dissolution. Another indication that the Arkansas legislature did not intend to equate charter forfeiture with corporate dissolution is found in Ark.Code Ann. § 26-54-112 (Supp. 1989), which provides that a corporation whose charter has been forfeited for nonpayment of taxes may be reinstated to all its rights, powers, and property upon payment of the delinquent taxes. As stated in 16A Fletcher, supra § 7998, at 91 (footnotes omitted): Provision is generally made for reinstatement of corporations which through default in making the reports or paying the license fees required by law have had their right to transact business suspended or have been stricken from the records. Consequently, so long as there is a statutory right to be reinstated, the proclamation of forfeiture for nonpayment of taxes does no more than forfeit the corporate right to do business, and does not extinguish the corporation as a legal entity. See Contractors, Laborers, Teamsters & Engineers Health & Welfare Plan v. Hroch, 757 F.2d 184, 190-91 (8th Cir.1985). Since a corporation with a forfeited charter has not been dissolved, the corporation continues to exist for limited purposes. Although the Arkansas statutes do not define the limited powers of a corporation whose charter has been forfeited, the statutes do set forth the rights and powers of a dissolved corporation in the process of winding up its affairs: (a) A dissolved corporation, its directors, officers, and shareholders, may continue to function for the sole purpose of winding up the affairs of the corporation in the same"
},
{
"docid": "18594887",
"title": "",
"text": "plan. (Post-petition payments are already fully up to date.) The tenant’s proposal is in full compliance with 11 U.S.C. § 365. Hence, the landlord’s motion for relief from the stay so as to execute on its judgment for possession by obtaining issuance and execution of a writ of restitution must be denied. Before concluding, I feel constrained to discuss two prior opinions of this Court which may seem to be at odds with my holding (1) that local law permits a leasehold forfeiture to be redeemed and the leasehold interest reinstated at any time until “execution is executed,” by paying the full amount of rental arrears, and (2) that bankruptcy law enhances this local law right, first by automatically staying its enforcement for a period of time within the sound discretion of the bankruptcy court, and second by permitting the rental arrears to be paid, not in full immediately, as required by local law, but within such time as the bankruptcy court may find to be a reasonable time. Those two prior opinions are In re Aries Enterprises, Ltd., 3 B.R. 472, 6 B.C.D. 280 (Bankr.D.D.C.1980), and In re Chuck Wagon Bar-b-que, Inc., 7 B.R. 92 (Bankr.D.D.C.1980). In both cases this Court held adversely to the interests of the tenants. In Aries, however, the debtor’s business had been closed by a tax levy a month before the debtor filed its bankruptcy petition. Hence, the debtor was not “in possession.” The Trans-Lux doctrine applies, as the court in Trans-Lux itself explicitly stated, only “so long as [the tenant] is in possession.” 54 A.2d at 146. In addition, this Court noted in Aries that the premises were in extremely poor condition, that substantial expense would have to be incurred in order to restore the premises to a functioning business status, that the debtor had no liquid assets, and that there was no plausible basis for the injection of new operating capital or for the sale of the business. 3 B.R. at 474-75. Thus, in that case there was no reasonable basis for believing that the tenant would be financially able to redeem"
},
{
"docid": "17686385",
"title": "",
"text": "also 7 Collier on Bankruptcy 111124.03[2] at p. 1124-10 (15th Ed. rev. 1999) (stating that Section 1124(a)(2) of the Bankruptcy Code “permits the plan to reinstate the maturity of a claim or interest without curing any defaults with respect to the financial condition of the debtor that are included in the Section 365(b)(2)(A) ipso facto clauses. This interpretation of Section 1124(a) is correct”). Section 525(a) of the Bankruptcy Code is a statutory companion of the foregoing principle. Section 525(a) prohibits a governmental unit from revoking a license in retaliation for commencement or prosecution of a bankruptcy case or the alleged nonpayment of a pre-petition claim. The statute provides, in relevant part: (a) Except as provided in [not applicable], a governmental unit may not deny, revoke, suspend or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against ... a person that is or has been a debtor under this title ... or another person with whom such debt- or has been associated, solely because such bankrupt or debtor is or has been a debtor under this title ... or has not paid a debt that is dischargeable in the case under this title.... See, e.g., In re Bill, 90 B.R. 651, 658 (Bankr.D.N.J.1988) (suspending driver’s license for failure to pay surcharge violated § 525); In re The Bible Speaks, 69 B.R. 368, 373 (Bankr.D.Mass.1987). It is well recognized that “[t]he prohibition against discrimination based upon the filing of a bankruptcy case necessarily extends to discrimination based upon automatic or likely consequences of such filing.” 4 Collier on Bankruptcy ¶ 525.02[1] at pp. 525-7. It appears that the FCC has violated Section 525 in its attempt to retroactively cancel the Licenses. The apparent discrimination is alleged in two forms. One form is the alleged differences in treatment of NextWave, on the one hand, and other C block and other spectrum license holders, on the other, summarized in the submission of debtors’ counsel. To establish this form of discrimination would require discovery proceedings and an evi-dentiary"
},
{
"docid": "12800974",
"title": "",
"text": "is available to a debtor for liquidation in an orderly fashion. Thus, Chapter 11 can be used to wind up the corporate affairs of a corporation which has been dissolved by operation of state law. Therefore, this court holds that 11 U.S.C. § 109(d) permits a dissolved corporation which might be a debtor under Chapter 7 of the Bankruptcy Code to be a debtor under Chapter 11 of the Code when to do so would not permit the debtor to circumvent a state dissolution law. There is an additional reason which justifies the holding in this case. It is clear that the debtor corporation was in a dissolved status as of the date of the filing of its petition for relief. However, after the filing of the petition for relief, the debtor corporation, through its officers and directors, requested reinstatement of the corporation under section 18.1-754 of the Code of Virginia. On or about September 12, 1988, the State Corporation Commission reinstated the debtor’s charter. Pursuant to section 13.1-754: “Upon the entry by the Commission of an order of reinstatement, the corporate existence shall be deemed to have continued from the date of termination of corporate existence except that reinstatement shall have no effect on any question of personal liability of the directors, officers or agents in respect to the period between termination of corporate existence and reinstatement.” Thus, it is clear that the Virginia legislature intended that once a corporation achieves reinstatement, its corporate status relates back to the date of its termination and it is as if the corporation had never been terminated. The debtor’s action in this case to achieve reinstatement after the filing of the petition supports its eligibility for Chapter 11 relief since, in the eyes of the State of Virginia, it has been a corporation all along. In addition, the reinstatement in this case distinguishes it from other cases which have held that Chapter 11 is not available to a dissolved corporation. Cf. In re Vermont Fiberglass, Inc., 38 B.R. 151, 152 (Bankr.Vt.1984), (court found that the debtor charter never reinstated); and Chicago Title"
},
{
"docid": "17906548",
"title": "",
"text": "He is making his application not more than one year after termination of all proceedings, including appeals, in connection with the judgment. (E) Should the superintendent pay from the real estate recovery special account any amount in settlement of a claim or toward satisfaction of a judgment against a licensed broker or salesman, the license of the broker or salesman shall be automatically suspended upon the effective date of an order by the court as set forth herein authorizing payment from the real estate recovery special account. No such broker or salesman shall be granted reinstatement until he has repaid in full, plus interest at the rate of eight per cent a year, the amount paid from the real estate recovery special account on his account. A discharge in bankruptcy does not relieve a person from the suspension and requirements for reinstatement provided for in this section, [emphasis added] Debtor essentially argues that any action to reduce Defendant’s discharged claim to judgment would result in a forfeiture of Debtor’s license by virtue of O.R.C. § 4735.-12(E). The Court notes that Debtor does not admit the alleged claim, and instead contends that any claim Defendant may possess was discharged on 29 June 1982. Instead, Debtor argues that Debtor’s real estate license constitutes property of the estate, and any action by Defendant which, in essence, effects a forfeiture of such license is thus an action “against property of the Debtor” and therefore violative of 11 U.S.C. § 362. Defendant responds that Debtor’s license is a state-granted privilege revocable upon a failure to fulfill the duties or to act within the standards of conduct prescribed in Chapter 4735 of the Ohio Revised Code. Defendant further emphasizes that its action in state court was only maintained for the purpose of seeking “declaratory relief” and that Defendant did not allege Debtor’s personal liability therein. It is the determination of the Court that the stay of 11 U.S.C. § 362 is inapplicable to the instant case. The automatic stay of 11 U.S.C. § 362(a)(1) operates as a stay of the commencement or continuation of any judicial"
},
{
"docid": "1119308",
"title": "",
"text": "caused by the debtor’s pre-petition failure to pay a home mortgage loan at its maturity. Payment of the First Mortgage Loan The second issue involves Barnett’s payment of the first mortgage loan. Where a subordinate mortgagee has paid off a prior long term mortgage loan through the provisions of its subordinate mortgage which provide that such amounts may be paid, are immediately due, and are secured by the subordinate mortgage, must the debtor deal with the amounts as immediately due under the terms of the subordinate mortgage, or may the debtor decelerate and reinstate the former first mortgage with the subordinate mortgagee as its holder, and cure defaults through a Chapter 13 plan. It is settled in all districts in Florida that a Chapter 13 debtor may decelerate and reinstate an accelerated long term home mortgage and cure defaults through a Chapter 13 plan, prior to a foreclosure sale. See In re Boromei, 92 B.R. 516 (M.D.Fla.1988); In re Related Partners Properties, Inc., 163 B.R. 213 (S.D.Fla.1993); and In re Westmore, 75 B.R. 110 (Bankr.N.D.Fla.1987). In this case, however, the first mortgage no longer exists. Barnett did not buy the long-term note and first mortgage or take them by assignment with the result that it is the holder of the long-term note and first mortgage as well as the subordinate mortgage. Barnett paid off the first mortgage loan through its contractual right to pay the mortgagor’s liabilities, obligations and encumbrances, and the full amount of that payment became immediately due and payable under the specific terms of the Barnett mortgage. By taking this approach, any hens which were between the former first mortgage and Barnett’s mortgage remain prior to Barnett’s mortgage, but Barnett has the clear contractual right to do this. The Debtor seeks to reinstate the former first mortgage with Barnett as its holder, decelerate the note, cure the defaults and maintain the payments under § 1322(b)(5). The Debtor cannot do this — such treatment would modify Barnett’s rights under its subordinate mortgage, which is impermissible under § 1322(b)(2). The right to pay obligations and encumbrances which could affect"
},
{
"docid": "6582943",
"title": "",
"text": "same he contacted debtors’ attorney, Neil I. Stern-stein, Esquire, at which time the parties agreed that DMV would place the suspension of debtor’s driving privileges on “hold” until such time as the court determines the merits of the debtor’s motion. As of March 30,1988, debtor’s driving privileges were restored pending the outcome of this matter. By order entered April 28, 1988 this court reinstated the debtors’ Chapter 13 petition. By notice sent from Clerk of the Bankruptcy Court dated June 22, 1988, creditors, including the State of New Jersey, A.I.S.C., were “notified that an order was entered on April 28, 1988 reinstating the [debtors’ bankruptcy] petition.” Based on this record the court is not satisfied that a willful violation of the automatic stay was committed by the State of New Jersey, A.I.S.C. Critical to this finding is the fact that the suspension of the debtor’s driver’s license occurred pre-petition on August 14, 1987. Creditors, including the State of New Jerse, A.I.S.C. were notified some time after February 3, 1988 that the debtor’s Chapter 13 petition was dismissed. Immediately upon receipt of no tice of the instant application, counsel for the State of New Jersey and counsel for the debtors agreed to the reinstatement of David Adams’ driving privilege. Accordingly, this court finds that the State of New Jersey, A.I.S.C. has not violated § 362(h) and, accordingly, the debtor’s request for imposition of damages in the form of attorneys’ fees is denied. The debtor further requests in-junctive relief against DMV prohibiting the DMY from any further attempts to collect the subject surcharges and ordering restoration of the debtor’s driving privileges and ordering the DMY to cease and desist from all actions which would prevent the restoration of the debtor’s driving privileges because of the debtor’s non-payment of the subject surcharges. A proceeding for in-junctive relief must be filed and served pursuant to Bankruptcy Rule 7065 and Fed.R.Civ.P. 65. Generally, a complaint commencing an adversary proceeding is filed with the court in which the Title 11 case is pending. Bankr.Rules 7003 and 5005(a); Fed.R.Civ.P. 3. There is no question that debtors’ filing"
},
{
"docid": "10143895",
"title": "",
"text": "liquidation. This debtor seeks relief under Chapter 11, a reorganization chapter, when there is nothing which can be reorganized. 38 B.R. at 18. C-TC has pointed out that the only asset involved in In re Fitzgerald was a typewriter (worth $2500) and that this was reason enough to deny a Chapter 11 petition. However, the bankruptcy court did not rely in its decision on the limited assets involved, but rather on the status of the debtor (i.e., as a partnership in dissolution). The importance under New York law of dissolution as it affects a partnership can be appreciated when one compares the effect of dissolution on a partnership with the effect of dissolution on a corporation. In Cedar Tide Corp. v. Chandler’s Cove Inn, Ltd. (In re Cedar Tide Corp.), 859 F.2d 1127, 1128 (2d Cir.1988), this circuit examined the question “whether the federal courts have jurisdiction over a Chapter 11 petition filed by a corporation previously dissolved by New York State for nonpayment of franchise taxes.” We held there that, while § 1006(a) of New York Business Corporation Law, (McKinney 1996), limited a dissolved corporation to those activities involved in the winding up of its affairs, the New York Tax Law, § 203-a(7) (McKinney 1996), allowed a dissolved corporation to be reinstated nunc pro tunc upon the filing of a certificate indicating that all taxes, penalties, interest and fees had been paid. In re Cedar Tide, 859 F.2d at 1132. The easy reinstatement allowed a New York corporation is not available to a New York partnership. Upon dissolution, the partnership is relieved of its responsibilities, duties and powers except for completing transactions unfinished at dissolution. N.Y. Partnership Law § 66(l)(a) (McKinney 1996). Thus, while a New York corporation in dissolution is entitled to proceed under Chapter 11 since reorganization is possible, a New York partnership in dissolution is not. Such an entity cannot reorganize. See also In re Fitzgerald Group, 38 B.R. at 18 (holding that “[tjhere can be no opportunity to rehabilitate an entity that, by law, no longer exists except for the purposes of liquidation.”). We therefore"
},
{
"docid": "12670635",
"title": "",
"text": "Id. ¶ 33. . Id. ¶ 32. . Id. ¶ 30. . Id. ¶ 36. The Debtor also argues that under the Second Circuit’s decision of In re Cedar Tide Corp. 859 F.2d 1127 (2d Cir.1988), denying a dissolved corporation the benefits of reorganization or liquidation would be contrary to the central purposes of the Bankruptcy Code. (Debtor Response ¶ 37). Mr. Takaya distinguishes Cedar Tide on the ground that the debtor there had been officially reinstated within six months of its bankruptcy filing (Takaya Motion ¶ 28), and that distinction has arguable merit. See In re C-TC 9th Avenue Partnership, 113 F.3d 1304 (2d Cir.1997) (“We held [in Cedar Tide ] that, while [NY BCL § 1006] limited a dissolved corporation to those activities involved in the winding up of its affairs, [NY Tax Law § 203] allowed a dissolved corporation to be reinstated nunc pro tunc upon the filing of a certificate indicating that all taxes, penalties, interest and fees had been paid”). Nevertheless, this Court assumes, without deciding, that with the Debtor's ability to pay the unpaid taxes and/or to liquidate in chapter 11, Cedar Tide nevertheless controls, and that the Debtor's dissolution does not disqualify it from resort to the Bankruptcy Code for that reason. When considering the totality of the circumstances in connection with the motion, as the Court is required to do, and does, below, the Court will not consider dissolution as a factor, either. . Bankruptcy Code section 362(g) provides, in relevant part: In any hearing under subsection (d) ... of this section concerning relief from the stay of any act under subsection (a) of this section - (1) party requesting such relief has the burden of proof on the issue of the debtor’s equity in property; and (2) the party opposing such relief has the burden of proof on all other issues. 11 U.S.C. § 362(g). .Takaya Mem. 8. As noted above, another warrant of eviction issued on or about May 17, 2001; as each warrant of eviction terminated the tenancy or confirmed its earlier termination, it is unnecessary for the Court"
},
{
"docid": "1194261",
"title": "",
"text": "MEMORANDUM OPINION AND DECISION FACTS LOREN S. DAHL, Bankruptcy Judge. The debtor in possession, Farmers Markets, Inc., filed its Chapter 11 petition on June 15, 1983. Concurrently, five other related entities, including Capitol City Farmers Markets, Inc., filed voluntary petitions for reorganization. On June 22, 1983 the court ordered joint administration of the six estates. At the time the petitions were filed, Capitol City Farmers Markets, Inc. owned two liquor licenses which it desired to sell. On September 19,1983 the court authorized the sale of the two licenses upon the terms and conditions set forth in the sales agreement attached to the debtor’s application. The agreement provided that Shortstop would purchase the licenses for $23,000 each and that this amount would be paid directly to the debtor. An escrow account would be opened to handle the transaction. Subsequently, on October 26, 1983, the California State Board of Equalization (Board) ordered the Department of Alcoholic Beverage Control to withhold transfer of the liquor licenses until the debtor paid the Board $27,717 in pre-petition taxes. On December 8, 1983 the Board informed the debtor that its claim against the liquor license escrows had increased to $56,000. The Board also filed a priority claim for taxes in the amount of $218,212. The debtor alleges that the Board had actual knowledge of the filing of the petition and that the Board’s actions constitute a violation of 11 U.S.C. § 362(a)(1), the automatic stay. The debtor asserts that the Board should be held in contempt of court. Based upon the debtor’s ex parte motion, the court issued an order to show cause on December 15, 1983. In the return to the order to show cause, the Board argues that the state can condition the transfer of a debtor’s liquor license upon the payment of delinquent taxes. The Board asserts that imposing conditions on the transfer of the licenses does not violate the automatic stay because it is not a proceeding within the meaning of § 362(a)(1). The Board continues that even if a proceeding is involved, the § 362(b)(4) exception to the automatic stay applies."
},
{
"docid": "2884143",
"title": "",
"text": "1993. The ten-day period to appeal a bankruptcy court order begins to run from the date of the entry of the order on the docket. In re Enna Associated Investors, 61 B.R. 687 (N.D.Ill.1986); In re Pacific Sales Co., 13 B.R. 634 (Bankr.D.P.R.1981); see also Bankruptcy Rule 9021. Therefore, the ten-day period in this case began to run on February 10, 1993, the date of the entry of the decision on the docket. Ten days hence was February 20th which fell on a Saturday, and therefore, a Notice of Appeal filed on Monday, February 22, 1993 was timely. . See In re Chase & Sanborn Corp., 904 F.2d 588, 593 (11th Cir.1990); In re Sublett, 895 F.2d 1381 (11th Cir.1990). . See In re Chase, 904 F.2d at 593; In re T & B General Contracting, Inc., 833 F.2d 1455 (11th Cir.1987); In re General Coffee Corp., 64 B.R. 702 (S.D.Fla.1986), cert. denied, 485 U.S. 1007, 108 S.Ct. 1470, 99 L.Ed.2d 699 (1988). . See, e.g., In re Hoffman, 65 B.R. 985 (D.R.I.1986) (state statute requiring that tax administrator certify all outstanding taxes had been paid prior to state approval of transfer of debtor’s liquor license violated § 525(a)); In re William Tell, II, Inc., 38 B.R. 327 (N.D.Ill.983) (court directed state licensing board to issue renewal of debtor's liquor license despite outstanding tax obligations which had to be first satisfied pursuant to state statute); In re Aegean Fare, Inc., 35 B.R. 923 (Bankr.D.Mass.1983) (municipal licensing board cannot condition renewal of debtor's liquor license on basis of state law that required certification that all taxes due had been paid); In re Jacobsmeyer, 13 B.R. 298 (Bankr.W.D.Mo.1981). . Although the Appellants raised this argument in the court below, the lower court did not address it in the Memorandum Decision."
},
{
"docid": "8387816",
"title": "",
"text": "costs of the Building. Facts The facts as established during the eviden-tiary hearing on this motion are as follows. Debtor is a New York corporation wholly owned by Eric Wright. By proclamation of the New York Secretary of State dated June 29,1994, debtor was dissolved and its charter was forfeited pursuant to § 203-a of the New York State Tax Law (“Tax Law”) for failing to pay its franchise taxes. To date, debtor has taken no steps to reinstate its charter, see Tax Law § 203-a(7), or to wind up its affairs in accordance with Tax Law § 203-a(10) and New York Business Corporation Law § 1005(a)(1). Debtor’s sole asset is a building located at 41 St. Nicholas Terrace, New York, New York (the “Building”). Aloi is a 76 year old retired New York City policeman. He holds a perfected first mortgage on the Building in the sum of at least $219,000 on account of a short term $180,000 loan he made to debtor on or about April 14, 1992. In or about December 1994, approximately $400,000 was paid allegedly on Aloi’s behalf to the City of New York in partial satisfaction of back taxes and penalties and interest thereon. Those unpaid taxes constituted a lien on the Building. Aloi contends that the sums paid to the City increase his secured claim to more than $600,000. Debtor denies that assertion. We need not resolve that dispute at this time. Debtor was almost immediately in default under Aloi’s loan which matured on September 1, 1992. On or about October 2, 1992, debtor filed a chapter 11 petition for reorganization in this district. On Aloi’s motion, and by order dated October 23, 1993 (Broz-man, J.), that case was dismissed. On or about December 13, 1993, Aloi commenced an action in New York State Supreme Court, New York County to foreclose his mortgage. By order dated January 21, 1994, the state court appointed a receiver of the rents and profits of the Building. On or about May 22, 1995, Aloi was granted judgment of foreclosure and sale. Debtor’s motion to vacate that judgment"
},
{
"docid": "13294891",
"title": "",
"text": "MEMORANDUM OPINION FLAUM, District Judge: This action is an appeal from three related orders of the Bankruptcy Court which required the State of Illinois Liquor Control Commission (the “Commission”) to continue to provide the Debtor, William Tell II, Inc. (“Tell”), a retail liquor license and to suspend operation of a state statutory provision with respect to Tell. For the reasons stated below, those orders are affirmed. Tell is engaged in the restaurant, liquor lounge and banquet hall business in Countryside, Illinois. Tell makes retail sales of alcoholic liquor as part of its business and it has been issued retail liquor licenses by the State of Illinois and the City of Countryside. On April 10, 1981, Tell filed a petition for relief under chapter 11 of the United States Bankruptcy Code. Tell is now being operated by a court appointed Trustee. The Commission is a state agency created pursuant to the Dram Shop Act, Ill.Rev.Stat. ch. 43, § 94 et seq. Among other duties and responsibilities, the Commission issues, supervises, and revokes liquor licenses within the State of Illinois. Illinois liquor licenses are valid for one year. On December 28, 1979, the Commission issued a citation and notice of hearing to Tell to show cause why its liquor license should not be revoked for failure to pay an outstanding state retailers’ occupation tax arrearage of $82,055.98. Under section 120a of the Dram Shop Act, a licensee’s failure to pay taxes owing to the state is grounds for license revocation. On May 14, 1980, after an evidentiary hearing, the Commission revoked Tell’s license for failure to pay the state taxes owing. No review of this administrative action was sought. Tell did apply for renewal of its license, though, since the revoked license expired in May anyway. The Commission granted Tell a new license. The Commission subsequently learned that Tell’s May 1980 application contained false statements and the Commission again issued a citation and notice of hearing to Tell. After a hearing, the Commission revoked Tell’s license on October 8, 1980. Tell challenged the revocation in an administrative review action in the Circuit"
},
{
"docid": "8387820",
"title": "",
"text": "In re A-K Enterprises, Inc., 111 B.R. 149, 150 (Bankr.N.D.Ohio 1990); In re Mattiace Indus., Inc., 76 B.R. 44, 48 (Bankr. E.D.N.Y.1987). Thereafter, it is incumbent upon debtor to show that relief under § 1112(b) is not warranted. See In re Namer, 141 B.R. 603, 606 (Bankr.E.D.La.1992). Section 1112(b)(1) of the Code is intended to preserve estate assets by preventing the debtor in possession from gambling on the enterprise at the creditors’ expense when there is no hope of rehabilitation. See In re GPA Technical Consultants, Inc., 106 B.R. 139, 141 (Bankr.S.D.Ohio 1989) (citing In the Matter of Little Creek Development Co., 779 F.2d 1068 (5th Cir.1986)). For these purposes, the term “rehabilitate” means “ ‘to put back in good condition; re-establish on a firm, sound basis.’ ” 5 Collier on Bankruptcy ¶ 1112.03 at 1112-19 (Lawrence P. King et al. eds., 15th ed. 1995) (quoting Websters New World Dictionary at 1225 (World 1964)). It is not synonymous with the term “reorganize”. Id. Aloi argues that debtor cannot be rehabilitated because its sole option under the Tax Law is to windup and liquidate its affairs. See N.Y.Tax Law § 203-a(10) (McKinney 1986); N.Y.Bus. Corp.Law § 1005(a)(1) (McKinney 1986). However, pursuant to § 203-a(7), debtor can have its corporate charter reinstated and all dissolution proceedings annulled by paying the tax arrearages. N.Y.Tax Law § 203-a(7) (McKinney Supp.1995). See Propp v. Chaya Amusement Corp., 155 A.D.2d 251, 546 N.Y.S.2d 628 (N.Y.App.Div.1989). Wright’s undisputed testimony was that debtor will promptly do so. Thus, debtor is not necessarily precluded from rehabilitating its business. Compare In re Cedar Tide Corp., 859 F.2d 1127, 1128 (2d Cir.1988), cert. denied, 490 U.S. 1035, 109 S.Ct. 1933, 104 L.Ed.2d 405 (1989). Aloi contends that the timing of the filing of debtor’s chapter 11 petition evidences an intent to abuse the protection afforded by the Code. Wright concedes that the chapter 11 petition was filed to forestall Aloi’s foreclosure sale. However, his uncontested testimony was that debtor intends to reorganize and that the petition was not filed until August 30, 1995, because he did not learn of the order"
}
] |
372617 | under the Act because his previous convictions were not submitted to a jury and proven beyond a reasonable doubt. Even if we set aside Wingfield’s agreement not to appeal his sentence, this claim has no merit and misstates the law. In Almendarez-Torres v. United States the Supreme Court determined that the fact of prior convictions need not be alleged in the indictment or proved beyond a reasonable doubt to form the basis for a sentence enhancement. 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Despite Appellant’s best attempts to muddy the waters, in Apprendi the Supreme Court specifically declined to overrule Almendarez-Torres, and the case remains good law. See 530 U.S. at 489-490, 120 S.Ct. 2348. See also REDACTED Accordingly, we affirm the sentence imposed by the District Court. We have considered all contentions presented by the parties and conclude that no further discussion is necessary. The judgment of the District Court will be affirmed. | [
{
"docid": "22804594",
"title": "",
"text": "argument that the fact of a prior conviction must be found by a jury was rejected by the Supreme Court in Almendarez-Torres v. United States, 523 U.S. 224, 244, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (stating that “to hold that the Constitution requires that recidivism be deemed an ‘element’ of petitioner’s offense would mark an abrupt departure from a longstanding tradition of treating recidivism as ‘goflng] to the punishment only’ ”) (quoting Graham v. West Virginia, 224 U.S. 616, 629, 32 S.Ct. 583, 56 L.Ed. 917 (1912)). Furthermore, in Apprendi the Court specifically exempted prior convictions from its holding, stating that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). Ordaz argues that because of the decision in Blakely, “it is clear that Almendarez-Torres cannot stand.” Br. of Appellant at 38. However, the Supreme Court has made clear that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); see also Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). We do not gainsay that there is a tension between the spirit of Blakely and Booker that all facts that increase the sentence should be found by a jury and the Court’s decision in Almendarez-Torres, which upholds sentences based on facts found by judges rather than juries. Cf. United States v. Mack, 229 F.3d 226, 238 n. 5 (3d Cir.2000) (Becker, J., concurring). Nonetheless, as an inferior federal court we have the responsibility to follow directly applicable Supreme Court decisions. See United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.2004) (“Marseille asks this court"
}
] | [
{
"docid": "3309208",
"title": "",
"text": "low end to 292 months in prison on the gun charge, and to a concurrent 210 months on the drug charge. Peltier appeals his sentence. The Government does not cross-appeal. We affirm. Peltier first contends the earlier convictions used to enhance his gun sentence should have been submitted to the jury, and the failure to do so violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi holds, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Peltier’s contention fails because Apprendi specifically excepts earlier convictions from the rule. We also reject Peltier’s assertion that Apprendi effectively overruled Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (refusing to interpret a statute to make the fact of an earlier conviction an element of the crime, and thus a fact question for the jury). Although the Court in Apprendi stated it was “arguable that Almendarez-Torres was incorrectly decided,” the Court specifically refused to overrule the decision. Id. at 489-90, 118 S.Ct. 1219. We must apply Supreme Court precedent as it stands, and that precedent does not require that either the existence or substance of Peltier’s earlier convictions be submitted to a jury and proven beyond a reasonable doubt. United States v. Davis, 260 F.3d 965, 969 (8th Cir.2001), petition for cert. filed, No. 01-7268 (U.S. Nov. 9, 2001). Peltier next asserts the district court committed error in sentencing him as a career offender under U.S.S.G. § 4B1.1. Because Peltier was at least eighteen when he committed the drug offense, he is a career offender if he has at least two earlier felony convictions for crimes of violence. We have already held that burglary of a commercial building is a crime of violence within the meaning of § 4B1.2(a), which defines crime of violence for purposes of the career offender and criminal history guidelines. United States v. Hascall, 76"
},
{
"docid": "6089938",
"title": "",
"text": "was an “attempted theft offense,” and thus an “aggravated felony,” pursuant to 8 U.S.C. § 1326(b)(2), and 8 U.S.C. § 1101(a)(43); and (3) that the trial court erred when concluding that it lacked the authority to order a downward departure from the 16 point enhancement Garcia received for committing an aggravated felony, pursuant to Application Note 5 of U.S.S.G. § 2L1.2. III. DISCUSSION A. The District Court’s Authority to Determine the Existence and Nature of a Prior Conviction. Garcia initially argues that the district court was without authority to make the finding that his 1988 burglary conviction was an “aggravated felony” for purposes of the maximum penalty enhancement of 8 U.S.C. § 1326. He argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), a prior criminal conviction, if it increases the maximum statutory sentence, must be treated as an element of the offense, included in the indictment, and established by the government beyond a reasonable doubt. Garcia has failed to present us with any case law, nor are we aware of any, requiring that the government charge -his prior conviction in the indictment. Garcia acknowledges the direct conflict between his argument and the Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and contends that Almendarez-Torres was overruled or limited by the Supreme Court’s subsequent decision in Apprendi. We disagree. In Apprendi, the Supreme Court summarized its holding as follows: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). As the quoted passage makes clear, the Court in Apprendi held that “prior convictions” need not be charged nor submitted to a jury. Indeed, the Court made clear that Almendarez-Torres was a “narrow exception to the general rule” announced in Apprendi. Id. at 490, 120 S.Ct. 2348. This ruling preserved the prior holding in Almendarez-Torres that under 8 U.S.C."
},
{
"docid": "17607280",
"title": "",
"text": "another ....” 18 U.S.C. § 924(e)(1) (emphasis added). Blair argues that, because he did not admit that the robberies occurred on different occasions when he pled guilty to the charges, the enhanced sentence was improper under Supreme Court case law and the Fifth and Sixth Amendments of the United States Constitution. In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that, under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Nevertheless, as is evident from the language of that holding, Apprendi did not change the pre-existing rule from Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that a judge, rather than a jury, may determine “the fact of a prior conviction.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Recently, in Alleyne v. United States, the Supreme Court extended Apprendi and held that any facts that increase a mandatory minimum sentence must be submitted to a jury and proved beyond a reasonable doubt. — U.S. -, 133 S.Ct. 2151, 2158, 186 L.Ed.2d 314 (2013) (overruling Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), which held that Apprendi did not apply to facts that increase a mandatory minimum sentence). But the Court expressly declined to alter the Almendarez-Torres rule. Id. at 2160 n. 1. It observed that, “[b]ecause the parties do not contest that decision’s vitality, we do not revisit it for purposes of our decision today.” Id. Almendarez-Torres therefore remains “a narrow exception to [Apprendi'’s ] general rule for the fact of a prior conviction.” Id. Blair tries to distance himself from the continuing control of Almendarez-Torres, but he cannot. Although he does not contend that Alleyne or Descamps overrules the Almendarez-Torres exception to Ap-prendi, he urges"
},
{
"docid": "12524662",
"title": "",
"text": "Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. And the year before that, in Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) the Supreme Court held that Congress could treat recidi vism — that is, the fact of a prior conviction — as a sentencing factor rather than an element of the crime, and therefore it need not be set forth in the indictment. Id. It is true, as the government notes, that the Apprendi opinion was fifty-three pages in length and contained two concurrences and two dissents. Nevertheless, had Sheehan read only the syllabus or even just the one-sentence (thirty-nine word) holding of Apprendi, demarcated in the syllabus of the opinion by an italicized “Held:” he would have known, without any doubt, that the fact of a prior conviction need not be submitted to a jury and proved beyond a reasonable doubt. The majority opinion contains a lengthy discussion regarding the exception for the “fact of a prior conviction” which includes a discussion of why this particular type of fact is particularly reliable and relevant and a clear announcement that the holding of Almendarez-Torres, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) would stand. Apprendi, 530 U.S. at 487-90, 120 S.Ct. 2348. Following this discussion, the court summarizes its holding, stating, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. Despite the fact that there were two concurrences and two dissents, the majority opinion drafted by Justice Stevens was not a fractured opinion in which only portions of the opinion held a majority vote. Five members of the court agreed with the whole of the majority opinion in Apprendi. In"
},
{
"docid": "14118329",
"title": "",
"text": "beyond a reasonable doubt before he was sentenced under § 924(e)(1). We rejected this argument in United States v. Skidmore, 254 F.3d 635 (7th Cir.2001), and that remains the law of this circuit. Skidmore relied on Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the Supreme Court held that recidivism used to enhance a defendant’s maximum penalty is not an element of a crime that must be charged in the indictment and determined beyond a reasonable doubt, but is instead a traditional sentencing factor decided by the judge. Skidmore, 254 F.3d at 642; Almendarez-Torres, 523 U.S. at 239, 243-44, 118 S.Ct. 1219. Almendarez-Torres noted that recidivism has long been considered a distinct issue because it “ ‘does not relate to the commission of the offense, but goes to the punishment only.’ ” 523 U.S. at 244, 118 S.Ct. 1219, quoting Graham v. West Virginia, 224 U.S. 616, 629, 32 S.Ct. 583, 56 L.Ed. 917 (1912). Although the Ap-prendi Court suggested that Almendarez-Toms might not survive the logic of Ap-prendi the Court did not overrule Almen-darez-Torres, and in fact explicitly carved out an exception for recidivism in its holding. Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348. Unless and until the Court chooses to overrule Almendarez-Torres, we are bound by it. For that reason, we held in Skidmore that an enhancement imposed pursuant to § 924(e)(1) based on a defendant’s three separate violent felonies is proper under Apprendi. Morris attempts to avoid our clear holding in Skidmore by arguing that he challenges not the fact of the convictions, but the determination that those convictions were committed on occasions different from one another. That determination, he argues, should have been submitted to the jury under the reasonable doubt standard. Morris presents no authority for parsing out the recidivism inquiry in that manner. The logic of both Skidmore and Almenda-rez-Torres applies to this aspect of the recidivism inquiry, which merely involves a determination of which prior convictions will be considered. The Almendarez-Tor-res Court even cited § 924(e) of the ACCA as one of many examples"
},
{
"docid": "6089939",
"title": "",
"text": "are we aware of any, requiring that the government charge -his prior conviction in the indictment. Garcia acknowledges the direct conflict between his argument and the Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and contends that Almendarez-Torres was overruled or limited by the Supreme Court’s subsequent decision in Apprendi. We disagree. In Apprendi, the Supreme Court summarized its holding as follows: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). As the quoted passage makes clear, the Court in Apprendi held that “prior convictions” need not be charged nor submitted to a jury. Indeed, the Court made clear that Almendarez-Torres was a “narrow exception to the general rule” announced in Apprendi. Id. at 490, 120 S.Ct. 2348. This ruling preserved the prior holding in Almendarez-Torres that under 8 U.S.C. § 1326, prior convictions are a sentencing factor, not an element of the crime, and need not be charged. Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. 1219; see also Dahler v. United States, 259 F.3d 763, 765 (7th Cir.2001) (holding that Apprendi did not overrule Almendarez-Torres). Thus, under Almendarez-Torres, prior convictions need not be included in the indictment, regardless of whether the existence of the prior conviction increases the maximum term of imprisonment. Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. The trial judge did not commit error on this issue and Garcia’s Apprendi challenge to his sentence is rejected. B. Commission of an Aggravated Felony. Garcia next alleges that the court erred in finding that his 1988 Illinois conviction was an “attempted theft offense” that qualified as an “aggravated felony” for purposes of the penalty enhancement provisions of 8 U.S.C. § 1326(b)(2), and U.S.S.G. § 2L1.2(b)(l)(A). The question of what constitutes an “aggravated felony” is reviewed de novo. Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th Cir.2000). Congress, in enacting the INA, listed specific"
},
{
"docid": "22638814",
"title": "",
"text": "not alleged in the indictment to which he pleaded guilty, his Sixth Amendment rights were violated when his sentence was enhanced based on that fact. More specifically, Cheek argues that the Sixth Amendment “requires that facts which increase [his] sentence above the statutory maximum be pled in an indictment and submitted to a jury for proof beyond a reasonable doubt” and that this requirement “applies] to prior convictions used to enhance a sentence under a recidivist statute.” While he acknowledges that in Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court held that the Constitution does not require the government to plead the fact of a prior conviction in the indictment, he maintains that the holding in Almendarez-Torres, even though not since overruled, was called into question in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See id. at 521, 120 S.Ct. 2348 (Thomas, J., concurring). Cheek argues that “[e]ven though Almen-darez-Torres remains intact, a valid argument exists that Apprendi applies to sentencing pursuant to a recidivist statute, and that Blakely [v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),] has extended Apprendi to require that the fact of a defendant’s prior convictions ... be pled in an indictment and proved to a jury beyond a reasonable doubt.” Cheek claims that “it is only a matter of time before the United States Supreme Court revisits and overrules its holding in Almendarez-Torres ” and that therefore we should treat his prior convictions as elements of the offense under the Armed Career Criminal Act. Of course, to succeed, Cheek must demonstrate plain error. See Fed.R.Crim.P. 52(b). In Almendarez-Torres, an alien pleaded guilty to having been found in the United States after being deported, in violation of 8 U.S.C. § 1326(a). 523 U.S. at 227, 118 S.Ct. 1219. That violation subjected Al-mendarez-Torres to a maximum term of imprisonment of two years. Section 1326(b), however, extends the maximum term of imprisonment to 20 years if the prior “removal was subsequent to a conviction for commission of"
},
{
"docid": "23563388",
"title": "",
"text": "factual objections to the PSR, but requested a downward departure because of cultural assimilation and overstated criminal history. The district court denied this request and sentenced Reyes-Pacheco to seventy months imprisonment followed by a three-year term of supervised release. This timely appeal followed. DISCUSSION I Reyes-Pacheco contends that the district court improperly enhanced his sentence on the basis of a prior aggravated felony conviction that was neither admitted nor charged in the indictment and proven beyond a reasonable doubt. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000). In Almendarez-Torres, the Supreme Court held that § 1326(b)(2) “simply authorizes a court to increase the sentence for a recidivist ... [and] does not define a separate crime.” 523 U.S. at 226, 118 S.Ct. 1219. In so holding, the Court rejected the argument that, because the fact of recidivism increased the maximum penalty to which a defendant was exposed, Congress was constitutionally required to treat recidivism as an element of the crime that must be charged in the indictment and proven beyond a reasonable doubt. Id. at 239, 118 S.Ct. 1219. While we recently observed that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), “casts doubt on the continuing viability of’ Almendarez-Torres, we concluded that Almendarez-Torres remains good law. Pacheco-Zepeda, 234 F.3d at 414 (“Unless and until Almendarez-Torres is overruled by the Supreme Court, we must follow it.”). The district court did not err by considering Reyes-Pacheeo’s prior aggravated felony conviction despite the fact that such conduct was neither admitted nor charged in the indictment, presented to a jury, and proven beyond a reasonable doubt. See id. at 414-15. II We review the legality of a sentence de novo. United States v. Jackson, 176 F.3d 1175, 1176 (9th Cir.1999) (per curiam). The district court’s interpretation of the Sentencing Guidelines is also reviewed de novo, United States v. Castillo, 181 F.3d 1129, 1134-35 (9th Cir.1999), while its application of the Sentencing Guidelines to the facts of a"
},
{
"docid": "18049485",
"title": "",
"text": "abuse of discretion standai’d, there is no reason to reverse. Relying on some comments by the district court, Delgado claims that the departure was based on a judgment that his offenses “had not, in the district court’s view, been adequately punished” rather than on an assessment of the criminal history. Even if this characterization of the court’s reasoning is accurate, there would be no abuse of discretion. The comment to- the relevant guideline notes that courts can take into account the fact that a defendant had “received what might now be considered extremely lenient treatment in the’past.” U.S.S.G. § 4A1.3, comment. The guidelines’ commentary is given controlling weight if it is not plainly erroneous or inconsistent with the guidelines. Stinson v. United States, 508 U.S. 36, 42-45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). IV. Delgado argues that, under Apprendi, his indictment was required to allege that his prior deportation was the result of a felony conviction and that, because it did not do so, his sentence should be reduced accordingly. As both sides recognize, Delgado’s argument is barred by existing Supreme Court and Fifth Circuit precedent. Apprendi does require that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. The Court earlier had held, however, in a § 1326 case similar to this one, that the government is not “required to prove to the jury that the defendant was previously deported subsequent to a conviction for commission of an aggravated felony.” Almendarez-Torres v. United States, 523 U.S. 224, 234-35, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (quotation omitted). We have established that Apprendi did not overrule Almendarez-Torres, which therefore remains good law. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000) (holding that Apprendi “expressly declined-’ to overrule Almendarez-Torres,” which therefore remains binding), cert. denied, 531 U.S. 1202, 121 S.Ct. 1214, 149 L.Ed.2d 126 (2001). AFFIRMED. . United States v. Asibor, 109 F.3d 1023,"
},
{
"docid": "22917630",
"title": "",
"text": "the district court improperly enhanced both his sentences based on his four prior convictions for violent and drug-related felonies. The problem with these decisions, he argues, is that the government did not allege the prior convictions in the indictment. Marseille argues that the government operated under a duty to do so based on the reasoning of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Almendarez-Torres v. United States, the Supreme Court held that the government need not allege in its indictment and need not prove beyond a reasonable doubt that a defendant had pri- or convictions for a district court to use those convictions for purposes of enhancing a sentence. 523 U.S. 224, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Though its later opinion in Apprendi questioned the continuing validity of the Almendarez-Torres holding, it explicitly refused to reconsider the issue. 530 U.S. at 489-90, 120 S.Ct. 2348. Marseille asks this court to extend Apprendi’s rationale and overrule Almendarez-Torres. As Marseille acknowledges, his wish is beyond our powers to grant. United States v. Thomas, 242 F.3d 1028, 1034-35 (11th Cir.2001) (refusing to reconsider the holding of Almendarez-Torres in the light of Apprendi because of the “very basic fact that we cannot overrule Supreme Court decisions”). Marseille admits that he has prior qualifying convictions. He challenges the district court’s determination that he was a career offender only on the ground that the government failed to allege those convictions in the indictment. We affirm the district court’s determination. V. For the reasons given above, we AFFIRM the judgment of the district court in all respects. . Citations to the Guidelines, unless otherwise noted, are to the 2002 version, which is the version that was in effect at the time of Marseille's sentencing. . Marseille was previously convicted of (1) attempted murder and carrying a concealed firearm, (2) burglary with a battery, (3) possessing cocaine with intent to sell it, and (4) possessing cocaine with intent to sell it. . Marseille does not appeal the district court's treatment of Marseille's juvenile convictions. . The parties"
},
{
"docid": "13056653",
"title": "",
"text": "found to have violated § 922(g) “and has three previous convictions by any court referred to in section 922(g)(1) ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another ... shall be ... imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1). Thus, in this case, because Skidmore had been convicted of three separate violent felonies, as defined by 18 U.S.C. § 924(e)(2)(B), the maximum sentence Skidmore faced was life imprisonment. In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), a case decided before the Court’s decision in Apprendi, the Court concluded that recidivism used to enhance a defendant’s maximum penalty is not an element of a crime that must be charged in an indictment and found beyond a reasonable doubt but instead is a sentencing factor. Id. at 239, 243-44, 118 S.Ct. 1219. Recognizing that this holding forecloses his argument here, Skidmore argues that Apprendi severely undermines the validity of Almendarez-Torres. In Apprendi the Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 466, 120 S.Ct. 2348. While the majority opinion in Apprendi noted that “it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested,” 530 U.S. at 489, 120 S.Ct. 2348 (footnote omitted), the Court specifically carved out and maintained the exception for “prior convictions” explained in Almendarez-Torres. See id. Thus, “Apprendi does not overrule the holding of Almendarez-Torres ... that penalty enhancements based on recidivism need not be established beyond a reasonable doubt.” United States v. Brough, 243 F.3d 1078, 1081 (7th Cir.2001). Because Skidmore’s three separate violent felony convictions were the reason he was subjected to the enhanced statutory maximum provided by § 924(e) for his violation of § 922(g)(1), we conclude that his sentence of 262 months was proper under Apprendi. See 18"
},
{
"docid": "23081837",
"title": "",
"text": "“Yes.” As James’s convictions were fewer than five years old, he was not barred from challenging them under § 851(e), unlike the defendant in Weaver. However, the district court enhanced James’s sentence based on prior convictions clearly delineated and described in the § 851 notice (in full compliance with § 851(a)) and also in the PSI, to which the court specifically directed James’s attention during the sentencing hearing. Thus, like the defendant in Weaver, James “all but affirmed” his prior convictions by failing to object to their use in the PSI’s sentence calculation and by confirming their existence at sentencing when the district court referenced them as the reason for the severity of his sentence. Our review of the sentencing transcript reveals that the district court adequately discussed with James and his counsel the underlying convictions that were the basis of his enhanced sentence and gave ample opportunity for any objection. Rather than object, James indicated that the convictions were accurate throughout pre-trial, trial, and sentencing proceedings. Any error in not specifically asking whether he affirmed or denied the convictions was harmless error. TV. Prior Convictions Were Properly Considered for Sentence Enhancement Purposes Binding precedent forecloses James’s argument that the district court erred by enhancing his statutory maximum based on prior convictions not proven to a jury beyond a reasonable doubt. Almendarez-Torres v. United States, 523 U.S. 224, 228-47, 118 S.Ct. 1219, 1223-33, 140 L.Ed.2d 350 (1998) (holding that prior convictions “relevant only to the sentencing of an offender found guilty of the charged crime” do not need to be charged in an indictment or proven to a jury beyond a reasonable doubt). James concedes this point but contends that Almendarez-Torres is wrongly decided. However, AlmendarezTorres remains binding precedent. See Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) (holding that “other than the fact of a prior conviction” any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, and explicitly stating that the Court’s holding did not"
},
{
"docid": "23057208",
"title": "",
"text": "qualify as separate offenses. Richardson, 230 F.3d at 1299-1300. At sentencing, the district court found that Miles had two prior convictions for burglary and a prior conviction for weapons possession, but did not articulate on the record the basis for finding that the two burglary convictions were committed on separate occasions and that each was for “generic” burglary as defined by the Supreme Court. Therefore, the district court did not make sufficient findings of fact on the record to allow us to review its decision, and we remand this case to the district court. The district court is instructed to find whether Miles committed the requisite number of prior violent felonies under 18 U.S.C. § 924(e) for sentence enhancement and to consider the facts un derlying the prior convictions in determining whether the 1965 convictions arose from a single episode. Next, Miles argues that his life sentence under section 924(e) violated the principles set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because Count Ten of the indictment failed to allege, and the jury was not required to find, that he had three prior violent felony convictions. We reject Miles’ Apprendi claim. Because Miles raised the argument under Apprendi at sentencing, he made a timely constitutional objection that we review de novo. United States v. Candelario, 240 F.3d 1300, 1303-06 (11th Cir.2000), cert. denied, 533 U.S. 922, 121 S.Ct. 2535, 150 L.Ed.2d 705 (2001). The Supreme Court established in Almendarez-Torres v. United States that a defendant's prior conviction is merely a sentencing factor that does not have to be submitted to the jury and proved beyond a reasonable doubt. 523 U.S. 224, 247, 118 S.Ct. 1219, 1233, 140 L.Ed.2d 350 (1998). The Court subsequently held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. The Court also stated that “we need not revisit [Almendarez-Torres ] for purposes"
},
{
"docid": "19061844",
"title": "",
"text": "charging document is not sufficiently limited, it is hard to see what would be. Accordingly, the district court properly counted the Kansas burglary conviction against Ridens for ACCA purposes. B. Sixth Amendment Challenge Ridens also claims the Sixth Amendment precluded the district court from resting the mandatory minimum on the judicially found fact of his past convictions. He relies on Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which extended the reasoning of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to the mandatory-minimum context in holding that “[a]ny fact that, by law, increases the penalty for a crime is an element that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2155 (internal quotation marks omitted). Because mandatory mínimums “increase the penalty for a crime,” id., Ridens argues a jury had to find the fact of his prior convictions. But Supreme Court precedent bars this argument. In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Court held that the fact of a prior conviction need not be submitted to a jury and proved beyond a reasonable doubt to serve as the basis for enhancing a defendant’s sentence. See id. at 226-27, 247. Almendarez-Torres survived Apprendi, see Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348, and Alleyne explicitly declined to revisit the question, see Alleyne, 133 S.Ct. at 2160 n. 1. Accordingly, Ridens’s Sixth Amendment challenge fails. III. Conclusion For the foregoing reasons, we AFFIRM Ridens’s sentence. . Ridens’s recommended Sentencing Guidelines range was 188 to 235 months, which was premised on his status as an armed career criminal under 18 U.S.C. § 924(e). See USSG § 4B1.4; R„ Vol. Ill at 14. Ridens ultimately received a 188-month sentence, and only argues here that the court wrongly concluded the burglary was a violent felony supporting an ACCA enhancement. . Thus, Ridens’s observation that facts in some judicial documents \"may be downright wrong,” Descamps, 133 S.Ct. at 2289, is off point. The Court was only"
},
{
"docid": "22441358",
"title": "",
"text": "Jeopardy violation even where “[t]he same conduct ... formed the basis of each count”). Regardless, as discussed above, we need not determine whether 18 U.S.C. § 2114 and 18 U.S.C. § 924(a) fail the Blockburger test because the cumulative sentence in § 924(a) was authorized by Congress. IV. APPEAL OF SENTENCE A. Armed Career Criminal Act Dowd argues on multiple grounds that he should not have been sentenced as an armed career criminal under the ACCA. First, Dowd claims that because his three prior felonies were not charged in the indictment and proven beyond a reasonable doubt to the jury, his sentencing pursuant to the ACCA was unconstitutional under the Supreme Court’s line of reasoning in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). We reject this argument. As Dowd recognizes, the Supreme Court made clear in Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 1222, 140 L.Ed.2d 350 (1998), that the Sixth Amendment does not require the government to allege in its indictment or to prove beyond a reasonable doubt that a defendant’s prior convictions qualify him for enhanced sentencing. Dowd asserts that the prior convictions exception to Ap-prendi carved out by Almendarez-Torres should be overturned in light of the line of cases cited above, particularly Shepard, but this argument is to no avail. As we have previously explained, we are bound by Almendarez-Torres until it is explicitly overruled by the Supreme Court. United States v. Greer, 440 F.3d 1267, 1275 (11th Cir.2006). Dowd next contends that even assuming Almendarez-Torres remains valid and pri- or convictions need not be charged in the indictment or proven beyond a reasonable doubt, the government still failed to present sufficient evidence to warrant sentencing Dowd as an armed career criminal. Specifically, Dowd contends that the evidence presented by the government to prove Dowd’s three qualifying convictions under the ACCA did not satisfy the requirements of Taylor"
},
{
"docid": "21409115",
"title": "",
"text": "In short, construing the evidence in the light most favorable to the government, as we must, we conclude that there was sufficient evidence for a reasonable fact finder to conclude that Contreras was an alien. B. Sentencing & Almendarez-Torres Contreras claims that his sentence was improper because the district court imposed a sentencing enhancement based on his prior convictions, in violation of his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Supreme Court has held that sentencing enhancements based on prior convictions are permissible without a finding on the fact of conviction beyond a reasonable doubt. Almendarez-Torres v. United States, 523 U.S. 224, 226-27; 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Apprendi held that factors leading to an increased sentence must be charged in the indictment and found by a jury, its holding expressly' excluded prior convictions from this general rule. 530 U.S. at 490, 120 S.Ct. 2348. As we have stated many times, we are bound by Almenda-rez-Torres unless and until the Supreme Court overturns it. See, e.g., Earle, 488 F.3d at 549 (“This court has repeatedly stated post-Apprendi that we are bound by Almendarez-Torres until the Supreme Court expressly overrules it.”). There is no basis for disturbing Contreras’ sentence. Affirmed. . Under 8 U.S.C. § 1101(a)(3), an alien is any person \"not a citizen or national of the United States.” . For a description of an “A-file,” see United States v. Earle, 488 F.3d 537, 539 n. 2 (1st Cir.2007). . The cédula is a passport-like identity document, bearing a government seal and signed by a government official. It contains a form in which identifying information—such as name, parents’ names, birth date, address, military service, eye color, and hair color'—is recorded (here, in handwriting) by a government official. The document also contains a photograph, a single fingerprint, and the signature of the individual. .Sassone testified that a Warrant of Deportation is a form routinely completed during the deportation process, in order to give DHS “the power to have this person removed from the United States,” as well as"
},
{
"docid": "22222736",
"title": "",
"text": "defendant was convicted of a felony other than an aggravated felony. See USSG § 2L1.2(b)(1)(B). In addition to the sentencing guideline argument, defendant filed a supplemental brief raising the question of the applicability of a recently decided Supreme Court case, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We address that supplemental issue first. I. Applicability of Apprendi In Apprendi, the Supreme Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 2362-63. As defendant correctly concedes, the Apprendi Court made it clear that its holding is subject to a narrow exception and is not applicable when the sentence-enhancing fact is a pri- or conviction, as in this case. The exception was carved out of the Apprendi holding to account for the Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). The Apprendi Court specifically declined to revisit or overrule Almendarez-Torres. Apprendi 120 S.Ct. at 2362 (“Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset.”). This case falls squarely within the exception to the Apprendi holding and is governed by Almendarez-Torres. Almendarez-Torres held that 8 U.S.C. § 1326(b)(2), which mandates an increased sentence for violation of § 1326(a) if the previous deportation was after commission of an aggravated felony, was not a separate element of the offense that must be proved to a jury beyond a reasonable doubt, but was, instead, merely a sentencing factor based on recidivism. Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. We are bound by that case to hold that the fact of defendant’s prior felony conviction is"
},
{
"docid": "16578477",
"title": "",
"text": "that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. The “fact of a prior conviction” exception avoided a conflict between Apprendi and Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Almendarez-Torres pleaded guilty to reentering the United States without permission following his deportation, in violation of 8 U.S.C. § 1326. Id. at 227, 118 S.Ct. 1219. Section 1326(a) provides for a maximum sentence of two years, but § 1326(b) authorizes a maximum sentence of twenty years if the prior deportation “was subsequent to a conviction for commission of an aggravated felony.” Almendarez-Torres admitted that his three aggravated felony convictions preceded his deportation, but argued that his eighty-five-month sentence was unconstitutional because the indictment had failed to allege the existence of those com victions. Almendarez-Torres, 523 U.S. at 227, 118 S.Ct. 1219. The Supreme Court rejected this argument on the ground that prior convictions function as a sentencing factor, rather than a statutory element, and therefore do not need to be alleged in the indictment. DISCUSSION Petitioners contend New York’s persistent offender statute violates the requirements of Apprendi because it authorizes the sentencing judge (rather than the jury) to find facts that increase the sentence beyond the maximum otherwise provided by law for the particular offense and does not require a finding beyond a reasonable doubt. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. They focus on the sentencing judge’s determinations concerning the “history and character” of the defendant and the “nature and circumstances” of the offense, as well as on the conclusion that an extended sentence “will best serve the public interest.” Petitioners contend that these determinations are factual findings, which “increase the penalty for a crime beyond the prescribed statutory maximum,” and under Apprendi, therefore, “must be submitted to the jury” and proved beyond a reasonable doubt. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. The State submits three arguments in opposition."
},
{
"docid": "23492974",
"title": "",
"text": "felony. RodriguezMontelongo asserts that § 1326(b)(2) creates a separate offense and that an element of this separate offense is a prior aggravated-felony conviction. Because the indictment did not allege a prior aggravated-felony conviction, Rodriguez-Montelongo argues that the only offense charged was that under § 1326(a). Therefore, he contends that because § 1326(a) has a maximum 2-year sentence, the district court exceeded the statutory maximum by sentencing Rodriguez-Montelongo to 41 months in prison. Rodriguez-Montelongo recognizes that in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court rejected an argument identical to the one he is making here. See id. at 235, 118 S.Ct. 1219. He contends, however, that in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court “cast serious doubt” on Almenda-rez-Torres ’s validity. See id. at 489, 120 S.Ct. 2348 (stating that “it is arguable that Almendarez-Torres was incorrectly decided”). Rodriguez-Montelongo asserts that he raises this issue here only to preserve it for possible Supreme Court review. In Almendarez-Torres, the Supreme Court held that the enhanced penalties in § 1326(b) were sentencing factors, rather than elements of separate offenses. See 523 U.S. at 235, 118 S.Ct. 1219 (“In sum, we believe that Congress intended to set forth a sentencing factor in subsection (b)(2) and not a separate criminal offense.”). The Court concluded specifically that a prior conviction need not be treated as an element of the offense, even if it increases the statutory maximum. See id. at 239-47,118 S.Ct. 1219. Although Rodriguez-Montelongo is correct that Apprendi cast doubt on the continued validity of Almendarez-Torres, it did not overrule that decision. See Ap-prendi 530 U.S. at 489-90, 120 S.Ct. 2348 (footnote omitted) (“Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Ap-prendi does not contest the decision’s validity[,] and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the"
},
{
"docid": "23081838",
"title": "",
"text": "affirmed or denied the convictions was harmless error. TV. Prior Convictions Were Properly Considered for Sentence Enhancement Purposes Binding precedent forecloses James’s argument that the district court erred by enhancing his statutory maximum based on prior convictions not proven to a jury beyond a reasonable doubt. Almendarez-Torres v. United States, 523 U.S. 224, 228-47, 118 S.Ct. 1219, 1223-33, 140 L.Ed.2d 350 (1998) (holding that prior convictions “relevant only to the sentencing of an offender found guilty of the charged crime” do not need to be charged in an indictment or proven to a jury beyond a reasonable doubt). James concedes this point but contends that Almendarez-Torres is wrongly decided. However, AlmendarezTorres remains binding precedent. See Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) (holding that “other than the fact of a prior conviction” any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, and explicitly stating that the Court’s holding did not affect the validity of Almendarez-Torres). We have stated that “we are bound by AlmendarezTorres until it is explicitly overruled by the Supreme Court.” United States v. Dowd, 451 F.3d 1244, 1253 (11th Cir.2006). The district court followed binding precedent and did not err in enhancing James’s sentence based on his prior convictions. V. Clerical Error We may remand with instructions to correct a clerical error in the judgment. United States v. Massey, 443 F.3d 814, 822 (11th Cir.2006). “Furthermore, it is fundamental error for a court to enter a judgment of conviction against a defendant who has not been charged, tried, or found guilty of the crime recited in the judgment.” Id. (citation and quotations omitted). Because the written judgment incorrectly states that James was convicted under § 841(b)(l)(B)(iii), rather than § 841(b)(1)(C), we remand for the limited purpose of correcting the clerical error. Upon a thorough review of the entire record on appeal, and after consideration of the parties’ briefs, we affirm in part and remand in part. AFFIRMED IN PART, REMANDED IN PART."
}
] |
241507 | satisfactory explanation by defendants, to require the submission of the easeMo the jury. Defendants-undertook the construction of the platform, and the question does not arise whether they would be liable if they had put into use a platform made by a reliable manufacturer and furnished ready for use, or had imposed upon their employees the duty of providing a platform or other appliance or instrumentality. Defendants are chargeable with such knowledge as ordinary eare- would have disclosed. Lahatt on Master and Servant, § 1054. Ordinary care is to be measured by the risk involved, and is a question .of fact for the -jury, except where there is no room for a fair difference of opinion among reasonable men. REDACTED 12 S. Ct. 679, 36 L. Ed. 485. In this case, the jury could reasonably have arrived at the conclusion that it was the duty of defendants to make a test, so as to ascertain the strength of the jointed pipe which gave way. 20 R. C. L. 34. Whether a single uncut piece of pipe was strong enough would depend in great degree on its length. Twenty-eight feet is a long span, and it could reasonably have been concluded by the jury that the span was too long to be considered safe without a test, or that the possible weakening of the pipe by the cutting of threads would, in the judgment of a prudent employer, have rendered a test necessary. | [
{
"docid": "22658920",
"title": "",
"text": "” that the law did not require the railroad company to adopt and have in use, at public crossings, the most highly developed and best methods of saving the life of travellers on the highway, but only such as reasonable care and prudence would dictate, under the circumstances of the particular case; and that the question of negligence, or want of ordinary care and prudence, was one for the jury to decide. In this connection the court gave to the jury the following instruction, which, it is claimed, was erroneous: . “You fix the standard for reasonable, prudent and cautious men under the circumstances of the case as you find them, according to your judgment and experience of what that class of men do under these circumstances, and then test the conduct •involved and try it by that standard; and neither the judge who tries the case nor any other person can supply you with the criterion of judgment by any opinion he may have on that subject.” But it seems to us that the instruction was correct, as an abstract principle of law, and was also applicable to the facts brought out at the trial of the case. There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms “ ordinary care,” “ reason- ' able prudence,” and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case, may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct .of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state"
}
] | [
{
"docid": "2030104",
"title": "",
"text": "he would fix the saws safe for him to work, and see that the holes were kept cleaned out, he would continue to work. The foreman said, “All right,” and the plaintiff “relied on his promise to fix it” and went to work the next day. The evidence was conclusive that temporary stave mills and the equalizers therein were commonly conducted and operated by ordinarily prudent mill owners in the vicinity of this mill in the same way that this mill and equálizer were constructed and operated, with open holes beneath the saws, and without any covering over them. Upon this state of facts the court, at the conclusion of the trial, denied a request to instruct the jury to return a verdict in favor of the defendant, and this ruling is assigned as error. The master is not required to furnish the best, the safest, or the newest appliances or methods of operation, nor to adopt extraordinary or unusual safeguards against risks and dangers. The limit of his duty here is to exercise ordinary care to supply reasonably safe places, appliances, and methods. The test of his discharge of this duty is the exercise of ordinal care to supply such places, appliances, and methods as persons of ordinary intelligence and prudence commonly furnish in like circumstances. Washington, etc., R. R. Co. v. McDade, 135 U. S. 554, 570, 10 Sup. Ct. 1044, 34 L. Ed. 235; Southern Pacific Company v. Seley, 152 U. S. 145, 153, 14 Sup. Ct. 530, 38 L. Ed. 391; Mississippi River Logging Co. v. Schneider, 20 C. C. A. 390, 391, 74 Fed. 195, 196. Tried by this test, there was no negligence in the construction or operation of the stave mill, or of the equalizer saws, for the proof was plenary that they were constructed and operated in the way commonly adopted by ordinarily prudent owners of mills under similar circumstances. But counsel rely on the promise of the defendant to keep the holes clear of sawdust and blocks and to make the saws safe. Whether or not such a promise to protect"
},
{
"docid": "7883769",
"title": "",
"text": "defect; and, if the conditions are such as would excite suspicion in a man of ordinary prudence, he must go further and apply other tests. We know that, machinery, and the materials composing it, may be tested in various ways. What the ordinary tests, as applied to railroad appliances, are, is not disclosed by this record; but we feel satisfied that looking is not the only test. The master must use such reasonable tests to discover defects as ordinary prudence suggests. The amount of care required is measured by the circumstances of each case, de-” pending upon the kinds of machinery used, the risks incident to its use, and the hazard of the business in which it is used. Whether the defendant could have discovered the defect in the hand hold in this case by the exercise of ordinary care was a question for the jury, and not for the court, to determine.” It is highly probable that the brakeman took hold of the end hand hold in order to be in the best position to signal the conductor. But whether this is so or not is quite immaterial. He was doing something he had an undoubted right to do, and that is customarily done by brakemen in the discharge of like duties. Moreover, it is certain his death was due solely to the insecure hand hold. There-, is no pretense that he would have been injured if the hand hold had not given way. The defective hand hold was the proximate cause, and the sole proximate cause, of the injury. Even if the deceased was guilty of any negligence, such negligence in no manner contributed to his injury, and the rule is well settled that “negligence which is not a proximate cause of the injury is not contributory negligence.” Railroad Co. v. Mansburger, 12 C. C. A. 574, 65 Fed. 196. In Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270, the supreme court say: “Contributory negligence will not exonerate defendant if it be shown that defendant might, by the exercise of"
},
{
"docid": "4930040",
"title": "",
"text": "against all injuries which his servants may suffer in the discharge of their duties. E. g., Uhlrig v. Shortt, 194 Kan. 68, 397 P.2d 321 (1964); Blackmore v. Auer, 187 Kan. 434, 357 P.2d 765 (1960). The Kansas Supreme Court has reiterated time and time again the legal axiom that an employer’s duty to furnish safe working conditions is not absolute and that an employee’s recovery for breach thereof is dependent upon proof of negligence. In Allen v. Shell Petroleum Corp., 146 Kan. 67, 68 P.2d 651 (1937), the Kansas Supreme Court formulated the test of employer negligence as follows: “The master is not required to furnish the best, the safest, or the newest appliances or methods of operation, nor to adopt extraordinary or unusual safeguards against risks and dangers. The limit of his duty here is to exercise ordinary care to supply reasonably safe places, appliances, and methods. The test of his discharge of this duty is the exercise of ordinary care to supply such places, appliances, and methods as persons of ordinary intelligence and prudence commonly furnish in like circumstances.” Further, because under fundamental principles of tort law the risk of injury defines the duty to be obeyed, Palsgraf v. Long Island R. R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253 (1928), the Kansas Supreme Court has held that “ ‘the master is not compelled to foresee and guard against an accident which reasonable and prudent men would not expect to happen, and where an injury to a servant could not reasonably have been anticipated, a failure to take precautionary measures is not negligence on the part of the master for which he is liable to the servant.’ ” Dodd v. Wilson & Co., Inc., 149 Kan. 605, 88 P.2d 1116 (1939). An employer is therefore not liable for failing to anticipate idiosyncratic injury to* a particular employee, arising from the employee’s peculiar physical condition of which the employer had and could have no notice. Allen, supra. An employer’s duty does not extend to the prevention of or warning against remote, improbable, and exceptional occurrences;"
},
{
"docid": "14755049",
"title": "",
"text": "BAKER, Circuit Judge. At the conclusion of plaintiff’s evidence, defendant having introduced none, the court-directed the jury to return a verdict for defendant, and this writ of error challenges the resulting judgment. Relationship of parties was that of consignee and common carrier by railroad. Plaintiff had been accustomed for some time to ship ice into Chicago on defendánt’s railroad in carload lots. Defendant would place the car on one of its sidings; and plaintiff would place in front of the door in the side of the car a platform, of a height to come slightly below the level of the car floor, so that ice could be transferred from the car to the platform and thence to the wagons of plaintiff’s customers. I. Variance. Plaintiff alleged: “The defendant delivered to the plaintiff a carload of ice, and in so delivering it placed the ear in which it was contained on the said track, at the said platform, for the purpose of having the ice removed therefrom by the plaintiff on the said platform; that in order that the said car might be unloaded with an ordinary degree of safety by the plaintiff, it was necessary that the said ear should be in an ordinary safe condition for the plaintiff to unload, and by reason of the premises it then and there became and was the duty of the defendant, in delivering the said carload of ice as aforesaid, to exercise ordinary care to furnish a car which was in a reasonably safe condition for the plaintiff to unload; yet the defendant, not mindful of its duty in this regard, and with utter disregard of the safety of the plaintiff in unloading the said car, carelessly and negligently used and furnished a car which was in a dangerous condition for the plaintiff to unload, in that the appliances by which the door of the said car which was on the side of the said car which was nearest to the said platform, was attached to the said car and held in its position on the said car, were so loose and"
},
{
"docid": "12634456",
"title": "",
"text": "SANBORN, Circuit Judge. This was an action by a servant against his master for damages for negligence in the construction and maintenance of elevators and of the shaft, in which they operated. At the close of the evidence counsel for the defendant requested the court to instruct the jury that all that was required of the master was that it should have exercised ordinary care to provide reasonably safe and suitable elevators and appliances for the use of its servant. The court denied this request, and charged the jury that it was the duty of (he defendant to furnish the plaintiff a reasonably safe place in which to work, reasonably safe tools, implements, or appliances with which to do his work, and to keep them in a reasonably safe condition of repair during the service. But actionable negligence is nothing but a breach of the duty to exercise reasonable care. It is not a breach of a guaranty of the character of place or of appliances. If a duty to provide a reasonably safe place or reasonably safe appliances were imposed upon the master, he would become in effect a guarantor of their reasonable safety, because his failure in any respect to make and keep them reasonably safe would be a breach of that duty and would cast him in damages, however great were his watchfulness and diligence. This is not the legal measure of the master’s duty or liability. The limit of his duty is to exercise ordinary care, having regard to the hazards the service, to provide the servant with reasonably safe working places, machinery, tools, and appliances, and to exercise ordinary care to maintain them in a reasonably safe condition of repair. Washington & R. Co. v. McDade, 135 U. S. 554, 569, 10 Sup. Ct. 1044, 34 L. Ed. 235; Texas & Pac. R. Co. v. Barrett, 166 U. S. 617, 619, 620, 17 Sup. Ct. 707, 41 L. Ed. 1136; Choctaw, Oklahoma & Gulf R. Co. v. Hallowav, 52 C. C. A. 260, 114 Fed. 458, 460; American Bridge Co. v. Seeds (C. C. A.;"
},
{
"docid": "10011844",
"title": "",
"text": "safe “shut-offs,” and in providing a stick that was short and of rotten material, and not a reasonably safe appliance, and in maintaining and operating a system of “blowpipes” that were not safe, and the system was old, inadequate, and unsafe. The petition states that on the 28th day of July, 1909, the plaintiff was at work in a reasonably safe place in said factory, and that he was ordered and directed by the foreman of the defendant to go into the shavings pit and open up the pipes etc., and that such were not his usual and ordinary duties in and about said factory; that while performing the work directed to him, and while standing upon said platform and using the stick so provided by defendant, and while standing upon said platform, which was on said day covered with shavings, the deceased fell from said platform by reason of its unguarded and unfenced condition, and by reason of his unsteady foundation on said platform, into the pit and lost his life. It clearly appears from this petition that- the plaintiff lost his life by falling from a platform which was unsafe for the purposes for which it was used, and that this platform had been erected there by the box company. The only allegation in the petition which tends in any way to make Krueger, the superintendent, responsible, is this: That he was — ■ “charged with the duty, among others, of providing and inspecting the place in which the deceased had to work, and the appliances with which he had to work; that said defendant Martin L. Krueger had entered upon the discharge of this among his other duties; and that said defendant Martin L. Krueger negligently failed to perform his duty of providing and continually inspecting the place where deceased had to work, and the appliances with which he had to work, and that by reason of his said negligence in this behalf, he is jointly liable,” etc. The duty of the master, to wit, the box company, to the deceased, to provide a reasonably safe place"
},
{
"docid": "7883764",
"title": "",
"text": "court instructed the jury to render a verdict for the defendant upon the ground that the plaintiff had been guilty of contributory negligence, but the supreme court reversed the judgment. The court, speaking by Mr. Justice Miller, said: “But we think these questions [of negligence] are for the jury to determine. We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions -of fact, why it should not decide such questions as this as well as others. * * * Instead of the course here pursued, a due regard for the respective functions of the court and jury would seem to demand that these questions should have been submitted to the jury, accompanied by such instructions from the presiding judge as would have secured a sound verdict.” In the case of Railroad Co. v. Ives, 144 U. S. 409, 417, 12 Sup. Ct. 679, 36 L. Ed. 485, the court said: “It is only where the foots are such that all reasonable men must draw the same conclusions from them that the question of negligence is ever considered one of law for the court.” The proof is overwhelming that the wood in which the hand holds were inserted was soft, black, and rotten. The only inspection oí the hand holds, if any was made, was a mere perfunctory, visual inspection. Such an inspection does not satisfy the requirements imposed by law on a railroad company, either as to its own or foreign cars. In Railroad Co. v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188, the supreme court said: “That it was the duty of the railway company to use reasonable care to see that the cars employed on its road were in good order and fit for the purposes for which they were intended, and that its employes had a right to rely upon this being the case, is too well settled to require anything but mere statement. That this duty of a railroad, as regards the cars"
},
{
"docid": "17324064",
"title": "",
"text": "statute and recovered a judgment for $1,000 damages. The defendant brings error, claiming that there was no evidence of negligence, and the plaintiff brings error, urging that contributory negligence was improperly made an issue in the trial, and that, if the plaintiff is entitled to recover, the law requires a larger verdict. We think there was substantial evidence tending to show negligence by defendant, and no complaint is made of the manner in which this issue was submitted to the jury, if it could be submitted at all. There was ,a place where the wheel could have been stored, and where it would have been entirely safe. If it had been left standing on edge, it would be clear that it had taken the character of an attractive nuisance. The event proves that it was not tilted over so far, but that it could be easily restored to its dangerous position, and this by the efforts of children, whose natural and ordinary conduct in respect thereto defendant was bound to anticipate. If it had been laid down in a horizontal position, or leaned over far enough so that it would have'been beyond the power of boys to set it upright, there would be a different question. In these respects the jury had a right to conclude that the case differed from Kasey’s Adm’r v. Railway Co. (Ky.) 124 S. W. 380, the decision chiefly relied on by defendants. The facts are very similar, but the wheel in that case either was tilted over enough further or was enough heavier so that to restore it to upright position furnished a matching test of strength between two strong men, and the defendant was not bound to anticipate an interference by adults. The principles which justify submission to the jury are illustrated by Railroad v. Stout, 84 U. S. (17 Wall,) 657, 662, 21 L. Ed. 745; Union Pac. Co. v. McDonald, 152 U. S. 262, 275, 14 Sup. Ct. 619, 38 L. Ed. 434; Escanaba Co. v. O’Donnell (C. C. A. 6) 212 Fed. 648, 129 C. C. A. 184, and cases"
},
{
"docid": "12639373",
"title": "",
"text": "while Stanczak was an employee of defendant in performance of his duties within the meaning of the Federal Employers’ Liability Act and was in exercise of ordinary care for his own safety the defendant disregarded its duty toward him in one of the following ways: 1. In failing to use ordinary care (a) to provide him a safe place to work; (b) to provide him with reasonably safe appliances with which to do his work. 2. In negligently (c) permitting edge of platform to become rotten, loose, torn and defective; (d) permitting large nails and spikes to protrude from edge of said platform and (e) permitting the top step of the caboose to become worn-out, loose and defective so that a piece of the board of said step gave way and became detached from said step in violation of the Federal Safety Appliance Act, 45 U.S.C.A. §§ 1-13. Plaintiff further alleges that one or more of said acts of negligence caused Stanczak, while in performance of his duties and while riding on the steps of the caboose, to trip and fall and as a result he was rolled in the close clearance between the platform and the box car sustaining injuries from which he died. Defendant’s answer denies that case arises under the Safety Appliance Act, denies that Stanczak was in exercise of' ordinary care for his own safety, denies any and all alleged acts of negligence and that any such act on its part caused Stan-czak’s injury and death in whole or in part. Most of the facts are 'undisputed. The testimony was conflicting as to certain facts including the physical condition of the loading platform and the platform of the caboose. The evidence shows or fairly tends to show the following facts: The freight depot and platform in question were 200 feet long from east to west. The platform proper was 122 feet long, 8 feet wide at its east end and its eastern portion was curved to the left to conform with the railroad tracks which served it. The elevation of the floor of the platform was"
},
{
"docid": "13309116",
"title": "",
"text": "something it should not have done or failed to do something it should have done. Keeping in mind that the plaintiff charged the defendant with negligence, not in making too much dust or in making more dust than a properly organized plant properly operated would make, but in failing to use reasonable care to provide a proper ventilating system to control the dust it did make, proof of much dust at a particular place without proof that the defendant could and therefore should have provided efficient means to overcome it is not substantial enough to be controlling on the averment that it was negligent in failing “to use reasonable care to provide a proper ventilating system.” Moreover, the plaintiff’s evidence of negligence in ventilation must respond to the test of another rule affecting a master’s duty to his servant, which is that he is required only to use “reasonable care” in selecting instrumentalities for his protection. On this rule, now established almost everywhere, this court said in Haines v. Spencer, 167 F. 266, 271: “The employer is not an insurer, and the duty imposed upon him is not to furnish the safest or newest and best machines and appliances, but only to exercise due care to provide those which are reasonably free from danger. [Citations.] And the rule as to this is the usage of the business, negligence not being imputable where the machine in, question is that which is generally employed.” (Citation.) Tompkins v. Machine Co., 70 N. J. Law, 330, 58 A. 393; Stapleton v. Reading Co. (C. C. A.) 26 F.(2d) 242. The court, continuing on the question as to how this is to be proved, said: “It may be that, for the purpose of comparison, it would be admissible, in order to aid the jury in determining what is reasonably safe, to put other machines in evidence, which are in common and ordinary use in similar establishments.” (Citing authorities for and against this procedure.) Without expressing ourselves upon the procedural part of the rule, it should be noted that, whatever it be, the plaintiff in this"
},
{
"docid": "1618913",
"title": "",
"text": "was in the act of cutting a piece of wire off the coil, when the end of the wire which had just been cut, recoiled and hit him in the eye, causing the injury complained of. The acts of negligence on the part of the defendant which plaintiff alleged caused the injury, were as follows: (1) Failure to furnish plaintiff a safe place in which to work. (2) Furnishing unsafe wire with which to work. (3) Failure to notify plaintiff that the kind of wire furnished had been changed from copper or galvanized to steel. (4) Failure to warn plaintiff of the danger that the wire was likely to recoil and injure him, though defendant was aware of the, danger. (5) Failure to furnish reasonably sufficient light for plaintiff to do his work. (6) Allowing steam to come from an ash pit located below the place where plaintiff was working, and to obscure plaintiff’s vision. (7) Failure to furnish sufficient room in which plaintiff could do his work. (8) Compelling plaintiff to work in a cramped position. (9) Furnishing plaintiff a loose and unsteady scaffold or platform on which to work. The seventh and eighth items of negligence were eliminated by the court in its charge to the jury. It will be observed that the remaining charges of negligence group themselves as follows: 2, 3, and 4, with the wire; 1, 5, and 6, with the light; 1 and 9, with the scaffold or platform. We shall take these matters up in reverse order. The platform or scaffold was made up of two boards, about 12 feet long, 8 or 10 inches broad, and 2 inches thick, placed side by side and resting upon timbers 2 inches by 4 inches, placed one near each end of the planks. The timbers in turn rested upon and across some of the steam pipes. The planks were not nailed or fastened to the crosspieces, nor were the latter fastened to the pipes. There was evidence tending to show that the platform thus constructed, while sufficiently strong, was somewhat unsteady. As to the light:"
},
{
"docid": "6919013",
"title": "",
"text": "must find for the defendant.” While there is some conflict of testimony as to the actual cause of the accident, the only testimony tending to show negligence sufficient to justify a verdict for complainant was to the effect that the accident was caused by the failure of Erickson to have the scow placed in proper position before making the lift. If, therefore, the jury followed the instructions of the court, as we must presume it did, its verdict must have been predicated upon the assumption that the master had negligently failed to furnish safe and suitable appliances or safe, skillful, and competent fellow servants. Another charge of error in the second assignment was to the effect that the court erred in instructing the jury as to its duty to furnish a reasonably safe place to work, when the evidence showed that it was a case of the use of instrumentalities, and not a case involving the doctrine of a safe place to work. As has been already shown, there was evidence to the effect that the accident was caused by the failure of Erickson, the gang foreman, to have the scow placed in proper position before attempting the lift. Whether the master was liable for such negligence, if established, is dependent upon whether his act was that of a vice principal or of a fellow servant. The' general principles applying to what constitutes the positive or nondele-gable duties of a master, and as to what risks are assumed by a servant, have been clearly established and defined, and there is now but little conflict of authority relative thereto. Among other principles that now receive universal recognition are these: It is the positive and nondelegable duty of the master to furnish its servants with reasonably safe and suitable appliances with which to work, with a reasonably safe place in which to work, with reasonably competent, safe, and skillful fellow servants to work with, and to use reasonable diligence at. all times to maintain these conditions. The test is reasonable care or diligence, and the degree of care required depends upon the"
},
{
"docid": "2334010",
"title": "",
"text": "then you may conclude that Texaco was negligent. . At oral argument the plaintiff argued that the jury should also have been instructed that Texaco would be negligent if it failed to see that its order was properly executed and that Booker had proper equipment to carry out the order in a safe and workmanlike manner. Our reading of trial judge’s charge to the jury reflects that this theory of negligence was adequately given to the jury. The trial judge charged: If you find in this case that Texaco retained control of the workover project that was to be performed by Booker or Halliburton, then, under such circumstances, Texaco had the legal obligation to exercise such control with reasonable care to prevent the workover project from being done in a manner likely to cause injury to those employees who had to actually perform the job. App. 198. . The trial judge charged the jury regarding working conditions as follows: A prime consideration in determining reasonableness is the possible risk in the particular situation. Naturally, the greater the risk of danger in any given situation, the greater the caution that will be exercised by the reasonably prudent person. That is, as the risk of danger increases, the reasonably prudent person exercises more and more care. Now, in determining whether or not the defendant Texaco was negligent, you may consider that it is the continuing duty of the defendant as owner of the platform to use ordinary care under the circumstances, to furnish those working aboard its platform with a reasonably safe place in which to work. The owner of a platform must always use ordinary care under the circumstances to maintain and keep the place of work and the platform’s equipment used in carrying on the work in a reasonably safe condition. Included in this duty is the obligation to discover all reasonable discoverable defects or hazards on its platform, and to either warn the plaintiff of them or to correct them. The failure of a platform owner to discharge his duty as a reasonable and prudent person under the circumstances"
},
{
"docid": "6919009",
"title": "",
"text": "the master negligently failed to furnish reasonably competent, safe, and skillful servants to operate the machinery and appliances. As shown above, there was no evidence upon which negligence could be predicated as to appliances. The only evidence of unskillful, negligent, or unsafe servants was that which tended to show that Erickson, the gang boss, failed in the one instance to move the scow into proper position. It is uncontra-dicted that he was an experienced and competent man, and there is nothing to show that he had ever before been careless, or that the master knew, or had reason to suspect, that he was an incompetent or unsuitable man for his position. One act of negligence on the part of an employé under such circumstances is not sufficient to charge the master with liability in employing him. 2 Thompson on Negligence, 1054; 26 Cyc. 1297, note 91; Spring Valley Coal Co. v. Patting, 86 Fed. 433, 30 C. C. A. 168; Hunter v. Alderman, 89 S. C. 502, 71 S. E. 1082. Where incompetency of a fellow servant is charged, the burden of proving this is upon the complainant, and it must be shown that the defendant knew, or with ordinary care could have known, of such incompetency. The presumption is that the employer has done his duty in this respect. 18 R. C. L. 728; Wabash Ry. Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932, 27 L. Ed. 605. The second assignment of error relates to the court’s instructions to the jury upon the law of the case, and, among other things, it is charged that the instructions were erroneous in so far as they related to safe appliances and experienced and competent employes, for the reason that there was no evidence adduced to support the charge of negligence in that respect. The jury was instructed as to the duty of the defendant to provide reasonably safe and suitable appliances and to provide a skillful, competent, and experienced man to manage, use, and control the Batter pile driver and engine, and was instructed that if it should"
},
{
"docid": "4887212",
"title": "",
"text": "erred in denying its Motion for Directed Verdict or its Motion for Judgment as a Matter of Law, because Martinez did not meet the standard of proving a prima facie case of negligence under FELA. The Railroad argues that Martinez was familiar with the dimensions of the platform and thus his own contributory negligence caused the accident. Further, because no other employees had complained of or been injured on the platform, Union Pacific could not have foreseen the injury, and thus was not negligent as a matter of law. To establish Union Pacific’s negligence under FELA, Martinez was required to show that Union Pacific breached its duty to provide him with a reasonably safe workplace. Peyton v. St Louis S.W. Ry. Co., 962 F.2d 832, 833 (8th Cir.1992). FELA does not require an employer to exercise the highest degree of care, but only the same degree of care as an ordinary, reasonable person would exercise in similar circumstances. Id. If an employee is injured because of an unsafe condition, the employer is liable “if its negligence played any part, even the slightest, in producing the employee’s injury.” Id. (citation omitted). It is without consequence that, from the other evidence, the jury may also attribute the accident to other causes, including the employee’s own contributory negligence. Here, the evidence showed that Union Pacific failed to place end rails on the platform which was located over five feet above the ground, in spite of the fact that end rails were located on other platforms at the North Platte diesel shop. Further, evidence showed that Union Pacific failed to place warning paint at the end of the platform so that an employee would know that he or she was nearing the end of the platform. It was reasonably foreseeable that an employee, distracted by performance of his or her job duties, would be at risk of injury on such platforms. We conclude that a reasonable jury could find that Union Pacific’s negligence played some part, even the slightest, in producing Martinez’s injury. The court did not err in denying the Motions for Directed"
},
{
"docid": "6919015",
"title": "",
"text": "circumstances of each case. Extra danger requires extra care. Instruction and warning must be given where the hazard of the employment demands it. The skill and constancy of supervision, and the frequency or extent of instruction, inspection, repair, and adjustment required, depend upon the character of the work and the dangers incident thereto. What constitutes due care or negligence, in any particular case, is ordinarily a question of fact for the jury. The master’s duty has been characterized as a duty of provision. In its broad and proper sense, it implies, or should imply, not only the sup ply of the appliances, place, and persons required, but of reasonably maintaining the safety of the conditions originally required. The master is not an insurer of these conditions, but is responsible for them at all times to the extent that reasonable prudence requires. Where a place has been rendered unsafe by the mere shifting operations of fellow servants in .the usual course of the work, an exception occurs. If unexpected contingencies and dangers are'brought about by the methods of work adopted by fellow servants, rendering the place unsafe, this will not ordinarily make the master liable; the test being reasonable foresight and prudence. Kreigh v. Westinghouse, 214 U. S. 255, 29 Sup. Ct. 619, 53 L. Ed. 984; Gulf Transit Co. v. Grande, 222 Fed. 817, 138 C. C. A. 243; Cybur Lumber Co. v. Erkhart, 238 Fed. 751, 151 C. C. A. 601; Bennett v. Crystal Carbonate Lime Co., 146 Mo. App. 565, 124 S. W. 608; Dunn v. Great Lakes Dredge & Dock Co., 161 Mich. 551, 126 N. W. 833. But to hold that the master cannot in any instance be chargeable for new conditions, rendering a place unsafe, would be absurd, and the safety which he is charged with providing should not be jeopardized by too nice theoretical refinements. In the case of Regan v. Parker-Washington Co., 205 Fed. 692, 123 C. C. A. 648, L. R. A. 1915F, 810, there is an interesting discussion of certain conflicts of opinion, regarding the principles by which it can be"
},
{
"docid": "12634457",
"title": "",
"text": "or reasonably safe appliances were imposed upon the master, he would become in effect a guarantor of their reasonable safety, because his failure in any respect to make and keep them reasonably safe would be a breach of that duty and would cast him in damages, however great were his watchfulness and diligence. This is not the legal measure of the master’s duty or liability. The limit of his duty is to exercise ordinary care, having regard to the hazards the service, to provide the servant with reasonably safe working places, machinery, tools, and appliances, and to exercise ordinary care to maintain them in a reasonably safe condition of repair. Washington & R. Co. v. McDade, 135 U. S. 554, 569, 10 Sup. Ct. 1044, 34 L. Ed. 235; Texas & Pac. R. Co. v. Barrett, 166 U. S. 617, 619, 620, 17 Sup. Ct. 707, 41 L. Ed. 1136; Choctaw, Oklahoma & Gulf R. Co. v. Hallowav, 52 C. C. A. 260, 114 Fed. 458, 460; American Bridge Co. v. Seeds (C. C. A.; decided at the December, 1905, term), 144 Fed. 605; St. Louis, Iron Mountain & Southern R. C. v. Needham, 69 Fed. 823, 825, 16 C. C. A. 457, 459; Lesser Cotton Co. v. St. Louis, Iron Mountain & Southern R. Co., 52 C. C. A. 95, 103, 114 Fed. 133, 141; Gowen v. Harley, 56 Fed. 973, 980, 6 C. C. A. 190, 197; Florence & C. C. R. Co. v. Whipps (C. C. A.) 138 Fed. 13, 17; Southern Pac. Co. v. Gloyd (C. C. A.) 138 Fed. 388, 390. It is true that in some parts of the charge the court stated the time rule upon this subject to the jury. The presumption, however, is that error produces prejudice. It is .only when the fact so clearly appears as to be beyond doubt that an error challenged did not prejudice, and could not have prejudiced the complaining party, that the rule that error without prejudice is no ground for reversal is applicable. Deery v. Cray, 5 Wall. 795, 807, 808, 18 L. Ed."
},
{
"docid": "2030105",
"title": "",
"text": "care to supply reasonably safe places, appliances, and methods. The test of his discharge of this duty is the exercise of ordinal care to supply such places, appliances, and methods as persons of ordinary intelligence and prudence commonly furnish in like circumstances. Washington, etc., R. R. Co. v. McDade, 135 U. S. 554, 570, 10 Sup. Ct. 1044, 34 L. Ed. 235; Southern Pacific Company v. Seley, 152 U. S. 145, 153, 14 Sup. Ct. 530, 38 L. Ed. 391; Mississippi River Logging Co. v. Schneider, 20 C. C. A. 390, 391, 74 Fed. 195, 196. Tried by this test, there was no negligence in the construction or operation of the stave mill, or of the equalizer saws, for the proof was plenary that they were constructed and operated in the way commonly adopted by ordinarily prudent owners of mills under similar circumstances. But counsel rely on the promise of the defendant to keep the holes clear of sawdust and blocks and to make the saws safe. Whether or not such a promise to protect against the ordinary risks incident to the business, which are not the effects of any negligence of the master, relieves the servant from his assumption of those risks, it is unnecessary to consider in this case, because in any event it does not relieve him from his duty, to exercise ordinary care tó protect himself from them. A promise by á master to remove defects, or to protect against risks or dangers, of which a servant has complained, does not relieve the latter of his duty to exercise ordinary care to protect himself against them. District of Columbia v. McElligott, 117 U. S. 621, 6 Sup. Ct. 884, 29 L. Ed. 946; St. Louis Cordage Co. v. Miller, 61 C. C. A. 477, 483, 126 Fed. 495, 501, 63 L. R. A. 551; Crookston Lumber Co. v. Boutin, 79 C. C. A. 368, 372, 149 Fed. 680, 684. The defendant knew the existence, the size, and the location of the holes. He knew that if he permitted his foot to fall into one of them"
},
{
"docid": "13094665",
"title": "",
"text": "was chargeable with knowledge of the conditions which existed there from time to time which in the exercise of reasonable care it could have ascertained. See S. S. Kresge Co. v. Holland, 6 Cir., 158 F.2d 495, at page 498. In Pacific American Fisheries v. Hoof, 9 Cir., 291 F. 306, at page 308, the court said: “As already stated, the duty (to furnish an employee with a working place and appliances which are safe) is a continuing one, and notice of defects and dangers will be imputed to the master where they could have been discovered by reasonable inspection and by the exercise of reasonable care.” Wetherbee v. Elgin J. & E. Ry. Co., 7 Cir., 191 F.2d 302, 307, relied upon by defendant, involved an unsafe condition created by the presence of a board on a track. This court, however, expressly noted the board was a “new threat” to safety, and that boards had only “on some previous occasions been found on or near tracks in the Ruberoid plant.” The presence of boards was sporadic and occasional. Moreover, Wetherbee, the employee killed in the accident, was specifically charged with the duty of keeping a lookout to see that the track was clear when the accident occurred and he was stationed on the front end of the lead car at the time of the accident for that very purpose. On the other hand in the case at bar the testimony is undisputed that plaintiff was under no duty to keep the platform area free of grease, and indeed the nature of his work precluded him from always taking the necessary steps to keep the platform clear. Even though he at times voluntarily wiped up grease and oil when he discerned their presence and had time to do so, the tendency of accumulated coal dust would naturally make it difficult in the night time to detect the presence of grease and oil. Defendant’s knowledge, actual or constructive, of the allegedly dangerous condition of the place where the accident occurred was a question for the jury, Urie v. Thompson, supra, whose"
},
{
"docid": "10011845",
"title": "",
"text": "from this petition that- the plaintiff lost his life by falling from a platform which was unsafe for the purposes for which it was used, and that this platform had been erected there by the box company. The only allegation in the petition which tends in any way to make Krueger, the superintendent, responsible, is this: That he was — ■ “charged with the duty, among others, of providing and inspecting the place in which the deceased had to work, and the appliances with which he had to work; that said defendant Martin L. Krueger had entered upon the discharge of this among his other duties; and that said defendant Martin L. Krueger negligently failed to perform his duty of providing and continually inspecting the place where deceased had to work, and the appliances with which he had to work, and that by reason of his said negligence in this behalf, he is jointly liable,” etc. The duty of the master, to wit, the box company, to the deceased, to provide a reasonably safe place for men to work, is not to be questioned. The duty of Krueger, under his employment by the box company, was to inspect these places, and supposedly, if any defect was discovered, to report the same to the master. The failure to perform the duty imposed upon him by the master neither excused the master from providing a reasonably safe place for the deceased to work in, nor does it establish in any wise a joint liability of a master and servant to the plaintiff. If Krueger, superintendent for the defendant, was guilty of any negligence whatever, that negligence of the servant might be assigned as a cause of action against the master. In my judgment the case was properly removed to this court, and the motion to remand will be denied."
}
] |
703920 | 1976); Great Western Bank & Trust v. Kotz, 532 F.2d 1252, 1256 (9th Cir. 1976). By the same token, short-term notes with a maturity not exceeding nine months, while expressly excluded from the definition of security outlined in 15 U.S.C. § 78c(a), do not necessarily fall outside the coverage of the 1934 Act. See Woodward v. Metro Bank of Dallas, 522 F.2d 84, 92 (5th Cir. 1975); Zeller v. Bogue Electric Mfgr. Corp., 476 F.2d 795, 799-800 (2d Cir.), cert. den., 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973); Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075, 1078-1080 (7th Cir.), cert. den., 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972); REDACTED Nor has the question of whether a demand note qualifies as having a maturity of less than nine months under the 1934 Act been resolved. Sonnenschein, Federal Securities Law Coverage of Note Transactions: The Antifraud Provisions, 35 Bus. Law at 1574 n. 25. Rather than focusing on the term of a particular note, therefore, the courts in giving effect to congressional concern for investors examine the circumstances of a subject transaction in order to determine whether said transaction was entered into for investment purposes, or was primarily commercial in nature and thus beyond the scope of the securities laws. United Housing Fdn., Inc. v. Forman, 421 U.S. at 852-853, 95 S.Ct. at 2060-2061; Frederiksen v. Poloway, 637 F.2d 1147,1150 (7th Cir.), | [
{
"docid": "18609792",
"title": "",
"text": "the term security “means any note but shall not include any note . . . which has a maturity at the time of issuance of not exceeding nine months.” Commercial paper of PCTC has been before this court on at least two recent occasions, and in each case has been held to be a “security” within the meaning of Section 3(a)(10). Franklin Savings Bank in the City of New York v. Levy, 406 F.Supp. 40 (S.D.N.Y.1975); Welch Foods Inc. v. Goldman, Sachs & Co., 398 F.Supp. 1393 (S.D.N.Y.1974). In Zeller v. Bogue Electric Manufacturing Corporation, 476 F.2d 795 (2d Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973), the court agreed with Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972), that despite the wording of the exemption, a promissory note with a maturity of less than nine months may still be a “security” under the 1934 Act when offered to the public as an investment “unless the note fits the general notion of ‘commercial paper’ reflected in the SEC Release.” Zeller, supra, 476 F.2d at 800. In Sanders, the SEC Release referred to was 33-4412, 17 C.F.R. § 231.4412 (hereinafter “Release”) which stated: “The legislative history of the Act makes clear that section 3(a)(3) [of the 1933 Act] applies only to (1) prime quality negotiable commercial paper (2) of a type not ordinarily purchased by the general public, that is, (3) paper issued to facilitate well recognized types of current operational business requirements and (4) of a type eligible for discounting by Federal Reserve banks.” While the quoted Release dealt with the exemption of a security from the registration requirement of the 1933 Act, Zeller holds that there is no doubt that the SEC would take the same view with respect to the exclusion provided in Section 3(a)(10) of the 1934 Act. Judge Friendly, however, in writing for the Zeller court, recognized that the 1933 Act and 1934 Act differ in their method of handling short-term commercial paper. Under the"
}
] | [
{
"docid": "20876518",
"title": "",
"text": "lease, any collateral-trust certificate, preorganization certificate or subscription, transferrable share, investment contract, voting-trust certificate, certificate of deposit, for a security, or in general, any instrument commonly known as a “security”; or any certificate of interest or participation in, temporary or interim certificate for, receipt for, or warrant or right to subscribe to or purchase, any of the foregoing; but shall not include currency or any note, draft, bill of exchange, or banker’s acceptance which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited. . Apparently some of the promissory notes involved had a maturity period exceeding nine months, thus lifting them from the exclusionary wording of 15 U. S.C. § 78c (a) (10) discussed in the cases cited. . Should the promissory notes not qualify as securities under rule 10b-5, they would nevertheless qualify in a similar action brought under section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), pursuant to that statute’s definition of “security,” 15 U.S.C. § 77b (1). Zeller v. Bogue Electric Manufacturing Corp., [Current] 476 F.2d 795 (2d Cir. 1973); Sanders v. John Nuveen & Co., 463 F.2d 1075, 1078 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972). . Cf. note 3, infra. The form of suit, i. e. class action, chosen by the plaintiff shareholder is not uncommon. E. g., Korn v. Franchard Corp., 456 F.2d 1206 (2d Cir. 1972); Esplin v. Hirschi, 402 F.2d 94 (10th Cir. 1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459 (1969)."
},
{
"docid": "7449479",
"title": "",
"text": "“any note” within its purview. But section 3(a)(10) of the 1934 Act excludes from the definition “any note . .. which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereóf the maturity of which is likewise limited.” Despite the literal wording of the exception, many courts have recognized that a precise reliance on it would thwart the purposes of the securities acts, and have therefore turned to more functional, approaches in deciding when a note becomes a security. See, e. g., Amfac Manufacturing Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426 (9th Cir. 1978); Great Western Bank & Trust v. Kotz, 532 F.2d 1252 (9th Cir. 1976); Exchange National Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126 (2d Cir. 1976); C.N.S. Enterprises, Inc. v. G. & G. Enterprises, Inc., 508 F.2d 1354 (7th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975); Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795 (2d Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973); Lino v. City Investing Co., 487 F.2d 689 (3d Cir. 1973); Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972). See generally E. Sonnenschein, “Federal Securities Laws Coverage of Note Transactions: The Antifraud Provisions,” 35 Bus.Law. 1567 (July, 1980). We have followed one such functional approach and held that an investment note is a security while a commercial note is not a security, regardless of the literal reach of the definitional sections and the exception written into section 3(a)(10) of the 1934 Act. In McClure v. First National Bank of Lubbock, Texas, 497 F.2d 490 (5th Cir. 1974), cert. denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975), we explained: We realize that our holding today that the Act does not apply to commercial notes of a longer duration than nine months, taken with the decisions voiding the short-term exemption as to investment paper, virtually writes"
},
{
"docid": "11661610",
"title": "",
"text": "of approximately eight months. They provided for a definite rate of interest tied to the prime rate of the lending bank, and they were unsecured. Second, there were the Note Endorsements that amended the notes issued pursuant to the Secured Credit Agreement. The endorsements were dated August 9, 1977 and extended the maturity date on the notes to July 1, 1978. The notes, as amended, provided for a definite rate of interest tied to the prime rate of the lending bank, and they were secured by Frigitemp’s customer notes receivable. Third, there were the notes issued by El-sters to reflect the $4 million advance. These notes were issued on August 9, 1977 and matured on March 31, 1978, a period of approximately eight months. They provided for a definite rate of interest tied to the prime rate of the lending bank, and they were secured by Frigitemp’s oledge of El-sters common stock. Moreover, the underlying loan agreement provided that the proceeds of the loan were to be added to El-sters’ working capital for use in the ordinary course of business. Whether these notes are securities is not an easy question. The 1933 Act provides that, unless the context otherwise requires, “[t]he term ‘security’ means any note.” 1933 Act § 2(1), 15 U.S.C. § 77b(l) (1976). Although “[a]ny note ... which arises out of a current transaction or the proceeds of which have been or are to be used for current transactions, and which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited,” is exempt from the 1933 Act’s registration requirements, 1933 Act § 3(a)(3), 15 U.S.C. § 77c(a)(3) (1976), it is clear that this exemption does not apply to the Act’s antifraud provisions. Exchange National Bank v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir.1976) (quot ing Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795, 799 (2d Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973)); Sonnenschein, Federal Securities Law Coverage of Note"
},
{
"docid": "5073312",
"title": "",
"text": "those lenders declined to lend to Tradex. Also, as stated, the parties did not negotiate the terms of the notes, which were set by Tradex. Whether a particular instrument is a security is ultimately a question of law, but where there are disputed facts, the issue may be one for the jury. See Kotz, 532 F.2d at 1255. I conclude that there are sufficient questions of fact to preclude ruling on this issue as a matter of law at this time. Defendants also contend that the notes are “commercial paper” and thus exempt from certain provisions of the 1933 Act and specifically excluded from the definition of a security in the 1934 Act. See 15 U.S.C. §§ 77c(a)(3) and 78c(a)(10) (both of which cover “any note ... which has a maturity at the time of issuance of not exceeding nine months____”). Although the language of the statutes does not discriminate among short term notes, the courts have done so. Thus, the issue remains whether the instrument is in fact an investment. See Baurer v. Planning Group, Inc., 669 F.2d 770, 775 (D.C.Cir.1981); Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972). Defendants are not entitled to summary judgment on any of plaintiffs’ claims on the grounds that the notes are not securities, or are exempted from coverage by certain of the securities statutes. Finally, I reach the same result with respect to plaintiffs’ claims under the state statutes. Decisions construing the federal securities laws are entitled to deference in applying Oregon law. See, e.g., Karsun v. Kelly, 258 Or. 155,161, 482 P.2d 533 (1971). Moreover, the Oregon courts have approved use of a form of the risk-capital test. See Pratt v. Kross, 276 Or. 483, 555 P.2d 765 (1976); Black v. Corporation Division, 54 Or.App. 432, 634 P.2d 1383 (1981). 2. Whether Plaintiffs are “Purchasers” of Securities A second threshold question is presented by defendants’ contention that many plaintiffs are not “purchasers” within the meaning of the federal securities laws. Sections 11, 12 and 17"
},
{
"docid": "4363310",
"title": "",
"text": "the certificate of deposit was a security. II It is in this posture that the case is before us on appeal. The district court correctly considered the note and accompanying deed of trust collectively as one potential basis of jurisdiction. Indeed, if the note were not characterizable as a security, it is difficult to conceive of how the deed of trust which secured it could be so characterized. Accordingly, we proceed to consider whether the note and deed of trust or the certificate of deposit are securities. A. Note and Deed of Trust The definitional section of the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a) (10) (1970) provides that unless the context otherwise requires: “(10) The term ‘security’ means any note . . . but shall not include any note . . . which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited.” Despite the seemingly absolute mandate of this language, numerous other courts have refused to ritualistically apply the section. See Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795, 800 (2d Cir. 1973); Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075, 1080 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S. Ct. 443, 34 L.Ed.2d 302 (1972); SEC v. Vanco, Inc., 283 F.2d 304 (3d Cir. 1960), aff’g, 166 F.Supp. 422, 423 (D.N.J. 1958); United States v. Hill, 298 F. Supp. 1221, 1226-1227 (D.Conn.1969); Anderson v. Francis I. duPont & Co., 291 F.Supp. 705, 708 (D.Minn.1968); cf. United States v. Rachal, 473 F.2d 1338, 1343 (5th Cir. 1973). Rather, they have deemed notes with maturity dates not exceeding nine months to be subject to the Securities Exchange Act of 1934 where the notes constituted investment paper, not commercial paper. Illustrative of the reasoning underlying such dispositions is that expressed in Zeller v. Bogue Electric Manufacturing Corp., supra at 800: “[T]he mere fact that a note has a maturity of less than nine months does not take the case out of Rule 10b-5, unless the"
},
{
"docid": "2346798",
"title": "",
"text": "Since May 28, the Village Well has been operated by Casey and Kimlis. Plaintiffs sought rescission of all agreements with defendants, repayment of consideration paid and cancellation of obligations assumed. Plaintiffs relied exclusively for federal jurisdiction upon section 10(b) of the Securities Exchange Act of 1934 (15 U.S.C. § 78j) and Rule 10b — 5 thereunder (17 C.F.R. § 240.10b-5). All six defendants filed motions to dismiss on the ground that the 1934 Act does not apply to this transaction and therefore that federal jurisdiction does not lie. The district court denied all motions on May 2, 1973, but, on motions for reconsideration, vacated that order. On September 26, 1973, the motions by all defendants to dismiss were granted “for reasons stated in the record.” The record discloses that the court concluded that a “commercial” note, particularly one not subjected to further trading, as distinguished from an “investment” note, is not a security within the 1934 Act. II As we pointed out in Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075, 1078 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972), the six basic federal securities acts each includes “any note” within its definition of “security.” However, the 1933 Act exempts from registration, but not from the antifraud provisions of that act, any note “which arises out of a current transaction or the proceeds of which have been or are to be used for current transactions, and which has a maturity not exceeding nine months.” The 1934 Act excludes from the definition of a “security,” “any note . which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited.” In Sanders, we held that promissory notes with a maturity not exceeding nine months but offered to the public as an investment are “securities” within the meaning of the 1934 Act - despite the broad implications of the exception inasmuch as Congress obviously intended to protect such investors against fraud. 463 F.2d at 1079-1080. We"
},
{
"docid": "11661611",
"title": "",
"text": "the ordinary course of business. Whether these notes are securities is not an easy question. The 1933 Act provides that, unless the context otherwise requires, “[t]he term ‘security’ means any note.” 1933 Act § 2(1), 15 U.S.C. § 77b(l) (1976). Although “[a]ny note ... which arises out of a current transaction or the proceeds of which have been or are to be used for current transactions, and which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited,” is exempt from the 1933 Act’s registration requirements, 1933 Act § 3(a)(3), 15 U.S.C. § 77c(a)(3) (1976), it is clear that this exemption does not apply to the Act’s antifraud provisions. Exchange National Bank v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir.1976) (quot ing Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795, 799 (2d Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973)); Sonnenschein, Federal Securities Law Coverage of Note Transactions: The Antifraud Provisions, 35 Bus.Law. 1567, 1572, 1574-75 (1980); see 1933 Act § 12(2), 15 U.S.C. § 777(2) (1976); id. § 17(c), 15 U.S.C. § 77q(c) (1976). The 1934 Act provides that unless the context otherwise requires, “[t]he term security means any note . .. but shall not include any note ... which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited.” 1934 Act § 3(a)(10), 15 U.S.C. § 78c(a)(10) (1976). Thus, a literal reading of the statutes would mean that all notes are securities for purposes of section 17(a) of the 1933 Act and all notes with a maturity of greater than nine months are securities for the purposes of section 10(b) of the 1934 Act. Despite the broad statutory language, however, not every note is a security. Oliver v. Bostetter, 426 F.Supp. 1082, 1085 (D.Md.1977); see Exchange National Bank v. Touche Ross & Co., supra, 544 F.2d at 1133-37; Zeller v. Bogue"
},
{
"docid": "12865002",
"title": "",
"text": "American Bank and Trust Company to finance a new business. Moreover repayment of the loan was not made contingent upon the success of that business. Thus, American Bank and Trust Company was not an “investor” purchasing a “security,” as those terms are defined by the 1934 and 1933 Acts. In enacting the securities laws, Congress did not intend to provide a broad federal remedy for all fraud. Marine Bank v. Weaver, 455 U.S. 551, 556, 102 S.Ct. 1220, 1223, 71 L.Ed.2d 409 (1982); Kotz, supra, at 1253; Bellah, supra, at 1114. This commercial transaction was not within the contemplation of the drafters and, therefore, appellant could not invoke the protection of those Acts. The District Court correctly determined that American Bank and Trust Company had improperly based jurisdiction on the federal securities laws. Accordingly, the judgment of the District Court is affirmed. . See United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 849, 95 S.Ct. 2051, 2059, 44 L.Ed.2d 621 (1975); Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892); Union Planters, supra, at 1180. . Zeller v. Bogue Electric Manufacturing Corporation, 476 F.2d 795, 800 (2d Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973); Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075, 1079-1080 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972). . 15 U.S.C. § 78j provides: It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange— (a) To effect a short sale, or to use or employ any stop-loss order in connection with the purchase or sale, of any security registered on a national securities exchange, in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. (b) To use or employ, in connection with the purchase or sale of any security registered on"
},
{
"docid": "22700463",
"title": "",
"text": "Amfac Manufacturing Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426 (9th Cir. 1978); Great Western Bank & Trust v. Kotz, 532 F.2d 1252 (9th Cir. 1976); Exchange National Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126 (2d Cir. 1976); C.N.S. Enterprises, Inc. v. G. & G. Enterprises, Inc., 508 F.2d 1354 (7th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975); Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795 (2d Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973); Lino v. City Investing Co., 487 F.2d 689 (3d Cir. 1973); Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972). See generally E. Sonnenschein, “Federal Securities Laws Coverage of Note Transactions: The Anti-fraud Provisions,” 35 Bus.Law. 1567 (July, 1980). We have followed one such functional approach and held that an investment note is a security while a commercial note is not a security, regardless of the literal reach of the definitional sections and the exception written into section 3(a)(10) of the 1934 Act. In McClure v. First National Bank of Lubbock, Texas, 497 F.2d 490 (5th Cir. 1974), cert. denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975), we explained: We realize that our holding today that the Act does not apply to commercial notes of a longer duration than nine months, taken with the decisions voiding the short-term exemption as to investment paper, virtually writes that exemption out of the law. On the one hand, the Act covers all investment notes, no mat ter how short their maturity, because they are not encompassed by the “any note” language of the exemption. On the other hand, the Act does not cover any commercial notes, no matter how long their maturity, because they fall outside the “any note” definition of a security. Thus, the investment or commercial nature of a note entirely controls the applicability of the Act, depriving of all utility the exemption based on maturity-length. 497 F.2d at 494-95."
},
{
"docid": "7449480",
"title": "",
"text": "cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973); Lino v. City Investing Co., 487 F.2d 689 (3d Cir. 1973); Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972). See generally E. Sonnenschein, “Federal Securities Laws Coverage of Note Transactions: The Antifraud Provisions,” 35 Bus.Law. 1567 (July, 1980). We have followed one such functional approach and held that an investment note is a security while a commercial note is not a security, regardless of the literal reach of the definitional sections and the exception written into section 3(a)(10) of the 1934 Act. In McClure v. First National Bank of Lubbock, Texas, 497 F.2d 490 (5th Cir. 1974), cert. denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975), we explained: We realize that our holding today that the Act does not apply to commercial notes of a longer duration than nine months, taken with the decisions voiding the short-term exemption as to investment paper, virtually writes that exemption out of the law. On the one hand, the Act covers all investment notes, no matter how short their maturity, because they are not encompassed by the “any note” language of the exemption. On the other hand, the Act does not cover any commercial notes, no matter how long their maturity, because they fall outside the “any note” definition of a security. Thus, the investment or commercial nature of a note entirely controls the applicability of the Act, depriving of all utility the exemption based on maturity-length. 497 F.2d at 494-95. Accord, National Bank of Commerce of Dallas v. All American Assurance Co., 583 F.2d 1295 (5th Cir. 1978); Securities & Exchange Commission v. Continental Commodities Corp., 497 F.2d 516 (5th Cir. 1974); Bellah v. First National Bank of Hereford, Texas, 495 F.2d 1109 (5th Cir. 1974); First Federal Savings & Loan Association v. Mortgage Corp. of the South, 467 F.Supp. 943 (N.D. Ala.1979), appeal docketed, No. 79-2141 (5th Cir., May 10, 1979); Sea Pines of Virginia, Inc. v. PLD, Ltd., 399 F.Supp."
},
{
"docid": "22700462",
"title": "",
"text": "for lack of subject matter jurisdiction, and the standards of appellate review of orders granting such motions are also markedly different. Accordingly we have made no review of the substantial record in this case with a view to determining whether any motion for summary judgment could properly have been granted, and we express no views with respect thereto. IV. THE PURCHASE MONEY NOTES The definitional section of each of the 1933 Act and the 1934 Act, see supra note 11, includes “any note” within its purview. But section 3(a)(10) of the 1934 Act excludes from the definition “any note . .. which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited.” Despite the literal wording of the exception, many courts have recognized that a precise reliance on it would thwart the purposes of the securities acts, and have therefore turned to more functional approaches in deciding when a note becomes a security. See, e. g., Amfac Manufacturing Corp. v. Arizona Mall of Tempe, Inc., 583 F.2d 426 (9th Cir. 1978); Great Western Bank & Trust v. Kotz, 532 F.2d 1252 (9th Cir. 1976); Exchange National Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126 (2d Cir. 1976); C.N.S. Enterprises, Inc. v. G. & G. Enterprises, Inc., 508 F.2d 1354 (7th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975); Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795 (2d Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973); Lino v. City Investing Co., 487 F.2d 689 (3d Cir. 1973); Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972). See generally E. Sonnenschein, “Federal Securities Laws Coverage of Note Transactions: The Anti-fraud Provisions,” 35 Bus.Law. 1567 (July, 1980). We have followed one such functional approach and held that an investment note is a security while a commercial note is not a security, regardless of the literal"
},
{
"docid": "3438405",
"title": "",
"text": "been held to be virtually identical. Tcherepnin v. Knight, 389 U.S. 332, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967). Appellants argue the notes in question are not securities because of the maturity date exception. Although the stated maturities of these notes would appear to place them within the statutory exclusion, that exception is not applicable to the type of notes involved here. Numerous courts, interpreting that exception, have agreed with the Securities Exchange Commission (Securities Act Rel. No. 4412, 26 Fed.Reg. 9158 (1961)) and limited that exception to “. only . . . prime quality negotiable [commercial] paper of a type not ordinarily purchased by the general public, that is, paper used to facilitate well recognized types of current operational business requirements and of a type eligible for discounting by Federal Reserve banks.” Bellah v. First Nat’l Bank, 495 F.2d 1109 (5th Cir. 1974); Zeller v. Bogue Elec. Mfg. Corp., 476 F.2d 795 (2d Cir. 1973), cert. den’d 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146; Sanders v. John Nuveen & Co., 463 F.2d 1075 (7th Cir. 1972), cert. den’d, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302; Anderson v. Francis I. duPont & Co., 291 F.Supp. 705 (D.Minn. 1968).- The notes involved here certainly were not prime quality negotiable commercial paper. A more difficult question is raised by appellants’ assertion that these notes are not within the definition of security because they are not the type of notes Congress intended federal securities law to regulate. Appellee admits that not all notes are meant to be reached by the federal securities law. Although this statement seems to be contrary to the clear language “any note”, the “unless the context otherwise requires” language of 15 U.S.C. §§ 77b and 78c(a) and the Supreme Court’s indication that we are dealing with a flexible concept, SEC v. W. J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), have been held to compel limitation concerning notes to be considered within the definition. But see Sanders v. John Nuveen & Co., supra at 1078. Thus, not all notes are"
},
{
"docid": "4231899",
"title": "",
"text": "the general public, that is (3) paper issued to facilitate well recognized types of current operational business requirements, and (4) of a type eligible for discounting by Federal Reserve Banks. Finding that the notes met none of the above criteria, the Court concluded that the notes were not exempted from the anti-fraud provisions of the 1933 or the 1934 Act. The Court observed that “form should be disregarded for substance and the emphasis should be on economic reality” (463 F.2d at 1077): “. . . Congress intended to protect against fraud the purchasers of securities such as those involved here under the 1934 [A]ct as well. ****** In other words, when Congress spoke of notes with a maturity not exceeding nine months, it meant commercial paper, not investment securities. . [A] person who seeks to invest. his money and receives a note in return for it has not purchased commercial paper in the usual sense. He has purchased a security investment.” 463 F.2d at 1079-80. Thereafter, in Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795, 800 (2d Cir. 1973), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146, the Court discussed the four element test as it is applied under the 1933 Act and concluded : “We have no doubt that the [Securities and Exchange] Commission would take the same view with respect to the exclusion in § 3(a) (10) of the Securities Exchange Act. [Citations omitted.] Such a ruling, by an agency charged with the administration of a statute, while not conclusive, is entitled to substantial weight. [Citations omitted.] We thus agree with the decision of the Seventh Circuit in Sanders v. John Nuveen & Co., that the mere fact that a note has a maturity of less than nine months does not take the case out of Rule 10b-5, unless the note fits the general notion of ‘commercial paper’ reflected in the SEC Release.” The Court in Zeller recognized that all promissory note transactions are not necessarily within its holding, but that the Act seeks protection of investors, and should be construed and applied accordingly."
},
{
"docid": "4363311",
"title": "",
"text": "courts have refused to ritualistically apply the section. See Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795, 800 (2d Cir. 1973); Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075, 1080 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S. Ct. 443, 34 L.Ed.2d 302 (1972); SEC v. Vanco, Inc., 283 F.2d 304 (3d Cir. 1960), aff’g, 166 F.Supp. 422, 423 (D.N.J. 1958); United States v. Hill, 298 F. Supp. 1221, 1226-1227 (D.Conn.1969); Anderson v. Francis I. duPont & Co., 291 F.Supp. 705, 708 (D.Minn.1968); cf. United States v. Rachal, 473 F.2d 1338, 1343 (5th Cir. 1973). Rather, they have deemed notes with maturity dates not exceeding nine months to be subject to the Securities Exchange Act of 1934 where the notes constituted investment paper, not commercial paper. Illustrative of the reasoning underlying such dispositions is that expressed in Zeller v. Bogue Electric Manufacturing Corp., supra at 800: “[T]he mere fact that a note has a maturity of less than nine months does not take the case out of Rule 10b-5, unless the note fits the general notion of ‘commercial paper’ . It does not follow . . . that every transaction within the introductory clause of § 10, which involves promissory notes, whether of less or more than nine months maturity, is within Rule 10b-5. The Act is for the protection of investors, and its provisions must be read accordingly.” See also Sanders v. John Nuveen & Co., supra at 1080. This reasoning gives due recognition to the Supreme Court’s admonition in SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S.Ct. 275, 285, 11 L.Ed.2d 237, 248 (1963) that anti-fraud securities legislation is to be read “not technically and restrie- tively, but flexibly to effectuate its remedial purposes” and is compatible with that expressed in SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344, 350-351, 64 S.Ct. 120, 123, 88 L.Ed. 88, 93 (1943) that: “However well these rules [of statutory construction] may serve at times to aid in deciphering legislative intent, they long have been subordinated to the doctrine that courts"
},
{
"docid": "5441544",
"title": "",
"text": "laws are designed to protect investors, not persons engaged in ordinary consumer or commercial loan transactions. Moreover, subjecting ordinary loan transactions to federal securities law regulation would unnecessarily burden commercial paper markets. Thus courts have restricted application of the Acts to those notes procured for investment and have excluded notes issued in the context of a commercial loan transaction. McClure v. First Nat'l. Bank, 497 F.2d 490 (5th Cir. 1974), cert. denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975); Lino v. City Investing Co., 487 F.2d 689 (3d Cir. 1973); Zeller v. Bogue Electric Mftg. Corp., 476 F.2d 795, 800 (2d Cir. 1972), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 416 (1973); Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075, 1080 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972). In finding that the notes in question were commercial rather than investment paper, the courts in both McClure and Lino did emphasize that the notes were not publicly issued but exchanged in face to face transactions. Defendant, seizing upon this distinction, asserts that a similar emphasis here must lead us to conclude that the sale of plaintiff’s stock in Penn Tower is not covered by the 1934 Act. We do not so conclude. The reason courts have become involved in determining whether a note constitutes a security under the Acts is because instruments denominated notes can be either commercial or investment in nature. Shares of stock in a closely held family corporation do not possess such dual characteristics. Shareholders acquire these shares not with an eye towards personal use or consumption of the underlying interest (which, the Supreme Court found, was the motive of the Co-Op City tenants in Forman, 421 U.S. 837, 851, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975)), but rather for the purpose of acquiring an interest in a profit-making venture. An ordinary commercial loan, on the other hand, does not involve the “purchase” of a security. For example, in Lino plaintiff purchased a franchise sales center license from defendant and paid with cash"
},
{
"docid": "11661612",
"title": "",
"text": "Transactions: The Antifraud Provisions, 35 Bus.Law. 1567, 1572, 1574-75 (1980); see 1933 Act § 12(2), 15 U.S.C. § 777(2) (1976); id. § 17(c), 15 U.S.C. § 77q(c) (1976). The 1934 Act provides that unless the context otherwise requires, “[t]he term security means any note . .. but shall not include any note ... which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited.” 1934 Act § 3(a)(10), 15 U.S.C. § 78c(a)(10) (1976). Thus, a literal reading of the statutes would mean that all notes are securities for purposes of section 17(a) of the 1933 Act and all notes with a maturity of greater than nine months are securities for the purposes of section 10(b) of the 1934 Act. Despite the broad statutory language, however, not every note is a security. Oliver v. Bostetter, 426 F.Supp. 1082, 1085 (D.Md.1977); see Exchange National Bank v. Touche Ross & Co., supra, 544 F.2d at 1133-37; Zeller v. Bogue Electric Manufacturing Corp., supra, 476 F.2d at 800. Perceiving that Congress, in passing the securities laws, intended to protect investors, see Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 553, 19 L.Ed.2d 564 (1967), and not “to regulate commercial loan transactions that would have no impact on the securities markets,” American Fletcher Mortgage Co. v. U.S. Steel Credit Corp., 635 F.2d 1247, 1254 (7th Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1982, 68 L.Ed.2d 300 (1981), most courts have held that, regardless of maturity, a note is a security only if it evidences an investment transaction; if it merely reflects a commercial loan transaction, the provisions of the securities laws do not apply. Id. at 1254; National Bank of Commerce v. All American Assurance Co., 583 F.2d 1295, 1301 (5th Cir.1978); Great Western Bank & Trust v. Kotz, 532 F.2d 1252, 1256 (9th Cir.1976); C.N.S. Enterprises, Inc. v. G. & G. Enterprises, Inc., 508 F.2d 1354, 1359 (7th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975); McClure"
},
{
"docid": "22835149",
"title": "",
"text": "“any note, draft, bill of exchange, or banker’s acceptance, which has a maturity at the time of issuance not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited.” We began our discussion in Exchange National Bank by saying that “courts have shrunk from a literal reading [of these statutes] that would extend the reach beyond what Congress could reasonably be thought to have ... intended in these two great pieces of legislation and would produce a seemingly irrational difference in the scope of their anti-fraud provisions.” 544 F.2d at 1133. We then reviewed the only two cases in which this court had been required to decide whether notes constituted securities under the federal securities laws, Movielab, Inc. v. Berkey Photo, Inc., 452 F.2d 662, 663-64 (2 Cir.1971) and Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795,-799-800 (2 Cir.1973), cert, denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973), in both of which we had held the notes there in question to be securities within the 1934 Act. We then examined cases in the Third, Fifth, Seventh and Ninth Circuits which had come to a contrary conclusion on the differing facts there presented and commented on the “commercial-investment dichotomy” propounded particularly in McClure v. First National Bank, 497 F.2d 490 (5 Cir.1974), cert, denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975) and in C.N.S. Enterprises, Inc. v. G. & G. Enterprises, Inc., 508 F.2d 1354 (7 Cir.1975), cert, denied, 423 U.S. 825, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975). We also took particular note of Judge Eugene Wright’s narrower suggestion in a concurring opinion in Great Western Bank & Trust v. Kotz, 532 F.2d 1252, 1260-62 (9 Cir.1976), that a note given to a commercial bank in what purports to be an exercise of its lending function is never a “security” within the 1933 or 1934 Acts. Finding difficulties in these formulations, we suggested that it might be well to pay more , heed to the statutory language than some courts had done. Specifically we"
},
{
"docid": "22039958",
"title": "",
"text": "how that exception might affect the presumption that a note is a “security.” We emphasize that by “profit” in the context of notes, we mean “a valuable return on an investment,” which undoubtedly includes interest. We have, of course, defined “profit” more restrictively in applying the Howey test to what are claimed to be “investment contracts.” See, e. g., Forman, 421 U. S., at 852 (“[P]rofit” under the Howey test means either “capital appreciation” or “a participation in earnings”). To apply this restrictive definition to the determination whether an instrument is a “note” would be to suggest that notes paying a rate of interest not keyed to the earning of the enterprise are not “notes” within the meaning of the Securities Acts. Because the Howey test is irrelevant to the issue before us today, see supra, at 64, we decline to extend its definition of “profit” beyond the realm in which that definition applies. Justice Stevens, concurring. While I join the Court’s opinion, an important additional consideration supports my conclusion that these notes are se curities notwithstanding the statute’s exclusion for currency and commercial paper that has a maturity of no more than nine months. See 15 U. S. C. §78c(a)(10) (§3(a)(10) of the Securities Exchange Act of 1934). The Courts of Appeals have been unanimous in rejecting a literal reading of that exclusion. They have instead concluded that “when Congress spoke of notes with a maturity not exceeding nine months, it meant commercial paper, not investment securities.” Sanders v. John Nuveen & Co., 463 F. 2d 1075, 1080 (CA7), cert. denied, 409 U. S. 1009 (1972). This view was first set out in an opinion by Judge Sprecher, and soon thereafter endorsed by Chief Judge Friendly. Zeller v. Bogue Electric Mfg. Corp., 476 F. 2d 795, 800 (CA2), cert. denied, 414 U. S. 908 (1973). Others have adopted the same position since. See, e. g., McClure v. First Nat. Bank of Lubbock, Texas, 497 F. 2d 490, 494-495 (CA5 1974), cert. denied, 420 U. S. 930 (1975); Holloway v. Peat, Marwick, Mitchell & Co., 879 F. 2d 772, 778"
},
{
"docid": "11661613",
"title": "",
"text": "Electric Manufacturing Corp., supra, 476 F.2d at 800. Perceiving that Congress, in passing the securities laws, intended to protect investors, see Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 553, 19 L.Ed.2d 564 (1967), and not “to regulate commercial loan transactions that would have no impact on the securities markets,” American Fletcher Mortgage Co. v. U.S. Steel Credit Corp., 635 F.2d 1247, 1254 (7th Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1982, 68 L.Ed.2d 300 (1981), most courts have held that, regardless of maturity, a note is a security only if it evidences an investment transaction; if it merely reflects a commercial loan transaction, the provisions of the securities laws do not apply. Id. at 1254; National Bank of Commerce v. All American Assurance Co., 583 F.2d 1295, 1301 (5th Cir.1978); Great Western Bank & Trust v. Kotz, 532 F.2d 1252, 1256 (9th Cir.1976); C.N.S. Enterprises, Inc. v. G. & G. Enterprises, Inc., 508 F.2d 1354, 1359 (7th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975); McClure v. First National Bank, 497 F.2d 490, 493-95 (5th Cir.1974), cert. denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975); Briggs v. Sterner, 529 F.Supp. 1155, 1167 (S.D.Iowa 1981); Robbins v. First American Bank, 514 F.Supp. 1183, 1187-88 (N.D.Ill.1981); see Exchange National Bank v. Touche Ross & Co., supra, 544 F.2d at 1134-37; Sonnenschein, supra, at 1587-89. This is known as the commercial-investment dichotomy. See National Bank of Commerce v. All American Assurance Co., supra, 583 F.2d at 1301; Great Western Bank & Trust v. Kotz, supra, 532 F.2d at 1256; Sonnenschein, supra, at 1588. Courts utilizing the commercial-investment dichotomy judge a particular note transaction “against the attributes of an ‘investment’ and [accord antifraud coverage only to those transactions that sufficiently] display those attributes.” Sonnenschein, supra, at 1588. The Ninth Circuit, for example, has noted that factors such as the term of the note, the nature and extent of collateralization, the form of the obligation, the circumstances of issuance, the relationship between the amount borrowed and the size of the borrower’s business, and"
},
{
"docid": "5441543",
"title": "",
"text": "debatable. In any event, since stock, one of the most common forms of securities, carries a traditional and accepted meaning, it is not necessary, as defendant contends, for purposes of section 10(b) that Penn Tower stock meet the test used to identify an investment contract. Indeed, the Forman decision strongly suggests such a conclusion. The Court in Forman ap plied the Howey test only in part “B” of its opinion, when it determined that the Co-Op City shares were not “investment contracts.” By contrast, the Court did not utilize the Howey test in making its earlier finding that the Co-Op City shares did not constitute “stock.” We find further that cases holding that promissory notes are not “securities,” despite their literal coverage under the Acts, are also distinguishable from this case. The question whether a note constitutes a covered security depends on whether the note was procured for purposes of speculation or investment or for purposes of making a commercial loan. As a matter of policy, this distinction is a valid one. The federal securities laws are designed to protect investors, not persons engaged in ordinary consumer or commercial loan transactions. Moreover, subjecting ordinary loan transactions to federal securities law regulation would unnecessarily burden commercial paper markets. Thus courts have restricted application of the Acts to those notes procured for investment and have excluded notes issued in the context of a commercial loan transaction. McClure v. First Nat'l. Bank, 497 F.2d 490 (5th Cir. 1974), cert. denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975); Lino v. City Investing Co., 487 F.2d 689 (3d Cir. 1973); Zeller v. Bogue Electric Mftg. Corp., 476 F.2d 795, 800 (2d Cir. 1972), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 416 (1973); Sanders v. John Nuveen & Co., Inc., 463 F.2d 1075, 1080 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972). In finding that the notes in question were commercial rather than investment paper, the courts in both McClure and Lino did emphasize that the notes were not publicly issued but exchanged in"
}
] |
559907 | "3440. The Supreme Court held that there had been no violation of defendant’s constitutional rights because he had not offered “some plausible explanation of the assistance he would have received from the testimony of the deported witnesses.” Id. at 871, 102 S.Ct. 3440. . 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). . Id. at 589, 84 S.Ct. 841. . Id. . id. . Id. . Id. at 590, 84 S.Ct. 841, . 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). . Id. at 15, 103 S.Ct. 1610. . Id. at 11-12, 103 S.Ct. 1610 (quoting Ungar, 376 U.S. at 589, 84 S.Ct. 841). . Ellenbogen, 365 F.2d at 986 (""There is no mechanical test.”); see also REDACTED . Circuit because ""there are no mechanical rules to determine when a denial of a continuance violates due process”). . Sequa Corp. v. GBJ Corp., 156 F.3d 136, 147-48 (2d Cir.1998). . 324 F.2d 814 (2d Cir.1963). . Id. at 815, . Id. at 816. .Id. . Id. . U.K. law provides for judicial review of certain official actions, including certain decisions, actions or failures to act in relation to the exercise of a public function. Andrews, English Civil Procedure §§ 42.01-.06. Such cases appear, in a general way, to be roughly comparable in some but not all respects to actions under our own Administrative Procedure Act, 5 U.S.C, §§ 551-59," | [
{
"docid": "1845755",
"title": "",
"text": "the appellate division’s denial of Hirsch’s voucher. See Hirsch Decl. ¶ 6. Childs argues that habeas petitioners who are represented by the Legal Aid Society (“Legal Aid”) receive fully compensated representation in federal habeas proceedings pursuant to a contract between Legal Aid and the City of New York, whereas similarly situated petitioners represented by 18-B attorneys do not receive state-funded representation. DISCUSSION A. DENIAL OF CONTINUANCE AND DISMISSAL OF COUNSEL In general, broad discretion is granted to a trial court’s decision to grant or deny a continuance. See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). When a denial of a continuance forms the basis for a habeas claim, the petitioner must show not only that the trial court abused its discretion, but also that the denial was so arbitrary and fundamentally unfair that it violated constitutional principles of due process. See Ungar at 589, 84 S.Ct. 841; United States v. Ellenbogen, 365 F.2d 982, 986 (2nd Cir.1966); Hicks v. Wainwright, 633 F.2d 1146, 1149 (5th Cir.1981); Shirley v. NoHh Carolina, 528 F.2d 819, 822 (4th Cir.1975). The Supreme Court has cautioned, however, that “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.” Ungar at 589, 84 S.Ct. 841. Where a continuance is sought to retain or replace counsel, the right to choose counsel must be carefully balanced against the public’s interest in the orderly administration of justice. See United States v. Burton, 584 F.2d 485, 490 (D.C.Cir.1978). While indigent defendants have no right to choose their appointed lawyer, see United States v. Mills, 895 F.2d 897, 904 (2d Cir.1990), once counsel is assigned, the Sixth Amendment right to counsel of choice attaches and counsel may not be removed arbitrarily. See Fuller v. Diesslin, 868 F.2d 604, 607 (3d Cir.1989). The Supreme Court’s holding in Morris v. Slappy, 461 U.S. 1, 5, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) is instructive in guiding an assessment of arbitrariness in the context of a request for a delay of trial."
}
] | [
{
"docid": "9871086",
"title": "",
"text": "to counsel of choice, federal habeas corpus review affords Burton no relief. Even if Burton’s claim is viewed as a constitutional challenge to the denial of his motion for a continuance, it cannot be said that the Michigan Court of Appeals’s decision was contrary to or an unreasonable application of Supreme Court precedent. Denial of a continuance rises to the level of a constitutional violation only when there is “an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’....” Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)); see Ungar, 376 U.S. at 591, 84 S.Ct. 841 (“These matters are, of course, arguable, and other judges in other courts might well grant a continuance in these circumstances. But the fact that something is arguable does not make it unconstitutional.”). The circumstances of a particular case determine whether the denial of a continuance is so arbitrary as to violate due process. Ungar, 376 U.S. at 589, 84 S.Ct. 841 (“There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.’-’). A defendant must also show that the denial of a continuance actually prejudiced his or her defense. Powell v. Collins, 332 F.3d 376, 396 (6th Cir.2003) (“Actual prejudice may be demonstrated by showing that additional time would have made relevant witnesses available or otherwise benefit[t]ed the defense.”). While the Michigan' Court of Appeals did find that Judge Stell abused her discretion in denying Burton’s motion for a continuance, his trial date was in fact pushed back approximately three months as a result of the case being transferred to Judge Col-lette. After viewing the totality of the circumstances in this case, it cannot be said that Judge Stell’s denial of Burton’s motion for a continuance resulted in Burton"
},
{
"docid": "14838659",
"title": "",
"text": "belief that the Friday morning sentencing hearing did not provide “adequate time to prepare.” The court, however, ordered all the attorneys to return the next morning so that defense counsel could make a formal request for a presentence investigation. At the Thursday morning hearing, defense counsel stated that they were “not waiving [their] objection that ... there ha[d] not been sufficient time to make adequate determinations or to prepare to come to th[e] [sentencing] hearing.” Defense counsel then presented a formal request for a presentence investigation and psychiatric evaluation, and indicated that Beuke’s parents would be the only two mitigation witnesses called at sentencing. At the beginning of the Friday morning sentencing hearing, defense counsel reiterated their objection to the quick turnaround between the guilt and penalty phases, noting that “there hasn’t been sufficient time.” Defense counsel then objected to having only one hour to review the presentence investigation and psychiatric evaluation, whereupon the court provided a thirty-minute recess so counsel could further review those reports. A trial court’s denial of a continuance rises to the level of a constitutional violation only where there is “an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay.’ ” Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)); United States v. Moreno, 933 F.2d 362, 371 (6th Cir.1991). “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Ungar, 376 U.S. at 589, 84 S.Ct. 841. To obtain habeas relief, it is not sufficient for the petitioner to show that the trial court arbitrarily denied the continuance request; he “must also show that the denial of a continuance actually prejudiced his ... defense.” Burton v. Renico, 391 F.3d 764, 772 (6th Cir.2004). “Actual prejudice may be demonstrated by"
},
{
"docid": "16513743",
"title": "",
"text": "Turk's claim that he was unaware of what was transpiring and that he simply took orders from Joyner, the prosecution still was obligated to prove that Joyner intentionally defrauded the government. Joyner, who claims that the prosecution did not prove its case, was not precluded from acquittal by Turk's argument that he was unaware of what was happening. The defenses are not mutually antagonistic. B. Motion for Continuance Joyner also claims that the district court abused its discretion because it refused to grant a continuance in order for Joyner to hire new counsel. Joyner argues that the denial of the continuance infringed upon her sixth amendment right to counsel. The district court received a letter from Joyner the day before trial. In the letter Joyner asked for a continuance in order to hire counsel because she was unhappy with her appointed counsel's preparation for the case. The district court denied the continuance. A trial court has broad discretion in deciding whether to grant or deny a motion for a continuance. Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983). We will not disturb a district court's decision to deny a continuance unless the district court abused its discretion. United States v. Bush, 820 F.2d 858, 860 (7th Cir.1987). To establish an abuse of discretion, Joyner must show that actual prejudice resulted from the denial. United States v. Hamm, 786 F.2d 804, 806 (7th Cir.1986). [O]nly an unreasoning and arbitrary `insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel.\" Id. 461 U.S. at 11-12, 103 S.Ct. at 1616 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)). The record shows that the district court was more than justified in proceeding to trial under the circumstances. Joyner presented her request for a continuance on the eve of trial. The court had already allowed Joyner one opportunity without explanation to obtain new counsel and appointed new counsel two weeks before trial. Joyner's new appointed counsel informed the judge that"
},
{
"docid": "15124928",
"title": "",
"text": "months to prepare for sentencing, that counsel investigated numerous leads and abandoned some, and that counsel called numerous witnesses at sentencing. “The record demonstrates from the inception a zealous, earnest, intelligent and dedicated defense effort. Under these circumstances, the trial judge did not abuse his discretion by denying a continuance.” Id. at 722. Landrum renewed this claim in his post-conviction petition, which the trial court held to be barred by res judicata. Affirming this decision, the Ohio Court of Appeals cited the Ohio Supreme Court’s analysis and held that the new evidence Landrum submitted was cumulative and insufficient to demonstrate a constitutional violation. Landrum III, 1999 WL 22626, at *6. In habeas proceedings, the district court held that the state courts’ resolution of the claim was consistent with federal law, finding that Landrum failed to show prejudice, that he was able to present extensive mitigation evidence, and that the evidence was cumulative. Landrum VI, 2005 WL 3965399, at *60-61, 2005 U.S. Dist. LEXIS 41846, at *174. B. A trial court’s decision to grant or deny a continuance is a matter of discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); Bennett v. Scroggy, 793 F.2d 772, 774-75 (6th Cir.1986). As we held in Powell v. Collins, “[a]bsent proof of a violation of a specific constitutional protection, a habeas petitioner must show that a trial error was so egregious as to deprive him of a fundamentally fair adjudication, thus violating constitutional principles of due process.” 332 F.3d 376, 396 (6th Cir.2003) (citing Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir.1988)). The denial of a continuance constitutes a constitutional violation only when there is “an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ .... ” Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (quoting Ungar, 376 U.S. at 589, 84 S.Ct. 841). As Morris and Ungar indicate, the denial of a continuance will rarely give rise to a constitutional violation and “[t]he circumstances of a particular ease determine whether the denial of"
},
{
"docid": "3796616",
"title": "",
"text": "all of the above into account, the court of appeal concluded that the trial court did not abuse its discretion in denying McCormick’s request for a continuance and/or counsel, reasoning that “[a] defendant who suddenly eschews self-representation may find that he will not be relieved of his original choice. A trial judge is not obligated to restore counsel if a Faretta defendant changes his mind in midtrial and no longer wants to represent himself,” quoting Brookner v. Superior Ct., 64 Cal. App.4th 1390, 1394, 76 Cal.Rptr.2d 68 (1998). We hold that the court of appeal’s decision was not an unreasonable determination of the facts presented to it, nor was it contrary to, or an unreasonable application of, clearly-established federal law. The Supreme Court has held that “[t]he matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), citing Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940). The Court has cautioned that “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality,” but that “[tjhere are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Id.; see also Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (trial courts have broad discretion with regard to continuances, and “only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel”) (internal quotation marks omitted). In line with that precedent, we have recognized that “[tjhere are times when the criminal"
},
{
"docid": "11002368",
"title": "",
"text": "sustained. In any event, any misconduct would not have amounted to prejudicial error because the evidence against petitioner was sufficient to support the conviction. See Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir.1991). Therefore ground 7 is dismissed. F. Trial Court Errors Petitioner alleges in grounds 16, 17, 20, 21, 22, 32, 33 and 42 that trial court errors denied petitioner due process and the effective assistance of counsel. Grounds 16 alleges that the trial court erroneously denied petitioner’s motion for a continuance. A trial court has “broad discretion” in deciding whether to grant a request for a continuance. Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983). To obtain relief, a habeas petitioner must thus demonstrate both that the trial court abused its discretion by unreasonably and arbitrarily denying a “justifiable request for delay,” Id. at 11-12, 103 S.Ct. at 1616, and that the denial substantially impaired the petitioner’s defense. United States v. King, 762 F.2d 232, 235 (2d Cir. 1985), cert. denied, 475 U.S. 1018, 106 S.Ct. 1203, 89 L.Ed.2d 316 (1986). In determining whether the trial court abused its discretion and violated due process, a reviewing court does not apply a mechanical test, but looks at the circumstances surrounding the request for a continuance. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). Here, petitioner’s trial counsel requested “some time” to review police reports that the defense obtained on the eve of trial and which referred to a potential witness. The trial court adjourned the proceedings until 11:00 a.m. the next day. Under the circumstances of this case, the trial court acted within its discretion in denying the request for a continuance. First, the reports detailed incidents that were outside the subject matter of the indictment. Second the reports referred to a potential witness that the defense was previously aware of and had adequate time to speak with. Lastly, the trial court afforded the defense ample time to further question the witness with regard to information contained in the reports. The denial of the"
},
{
"docid": "11531018",
"title": "",
"text": "Supreme Court precedent. Although the district court mentioned some evidence that came out at the federal evidentiary hearing, the court’s ultimate holding was “[b]ased on the information available to the trial judge at the time the motion for a continuance was made.” This claim is without merit. Trial courts are granted broad discretion on matters of continuances. Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). “The denial of a defendant’s motion for a continuance amounts to a constitutional violation only if there is an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay.” United States v. King, 127 F.3d 483, 486-87 (6th Cir.1997) (internal quotation marks omitted); see also Morris, 461 U.S. at 11-12, 103 S.Ct. 1610. As the Supreme Court put it: The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964) (emphasis added) (citations omitted). It is not enough for the defendant to demonstrate error, however. He must demonstrate reversible error: that the continuance’s denial “resulted in actual prejudice to his defense.” King, 127 F.3d at 487 (internal quotation marks omitted). “The defendant demonstrates ‘actual prejudice’ by showing that a continuance would have made relevant witnesses available or added something to the defense.” Ibid. The record shows that the State finished presenting its witnesses on Friday afternoon, August 14, 1998. The defense planned"
},
{
"docid": "14838660",
"title": "",
"text": "the level of a constitutional violation only where there is “an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay.’ ” Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)); United States v. Moreno, 933 F.2d 362, 371 (6th Cir.1991). “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Ungar, 376 U.S. at 589, 84 S.Ct. 841. To obtain habeas relief, it is not sufficient for the petitioner to show that the trial court arbitrarily denied the continuance request; he “must also show that the denial of a continuance actually prejudiced his ... defense.” Burton v. Renico, 391 F.3d 764, 772 (6th Cir.2004). “Actual prejudice may be demonstrated by showing that additional time would have made relevant witnesses available or otherwise [would have benefited] the defense.” Powell v. Collins, 332 F.3d 376, 396 (6th Cir.2003). We reject Beuke’s claim that the trial court violated his constitutional rights by denying his request for a continuance. Beuke has not demonstrated that he made a “justifiable request” for a continuance, see Slappy, 461 U.S. at 11-12, 103 S.Ct. 1610; his counsel did not state any particular reason why the trial court should grant the continuance, asserting only that the court provided “insufficient” or “inadequate” time to prepare and that the judge’s timetable was a “little ridiculous under the circumstances.” Such generalized objections do not constitute a justifiable request for a continuance. While it is true that only thirty-six hours separated the jury’s verdict and the commencement of the sentencing hearing, Beuke’s attorneys had two-and-a-half months to prepare for the guilt and penalty phases of the trial. And as we address further below, the record does not establish that counsel did not prepare for the penalty phase during"
},
{
"docid": "15491693",
"title": "",
"text": "it violated his Sixth Amendment rights. District courts should consider the following non-exhaustive list of factors when ruling on a motion to continue: 1) the amount of time available for preparation; 2) the likelihood of prejudice from denial of the continuance; 3) the defendant’s role in shortening the effective preparation time; 4) the degree of complexity of the case; 5) the availability of discovery from the prosecution; 6) the likelihood a continuance would have satisfied the movant’s needs;' and 7) the inconvenience and burden to the district court and its pending case load. United States v. Miller, 327 F.3d 598, 601 (7th Cir.2003). The district court is best able to judge the relative weight of these factors, and we will not reverse the denial of a continuance absent an abuse of discretion and a showing of actual prejudice to the defendant. Id.; United States v. Farr, 297 F.3d 651, 655 (7th Cir.2002). As for defendant’s Sixth Amendment challenge, “[o]nly an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)). The district court acted well within its discretion in denying the second motion to continue. Vincent had sufficient time to prepare for trial. Accepting defendant’s assertions at face value, his vision would have been restored fully by September 20, 2002, more than seventy days before trial. These seventy days exclude all of the time from May 15th, when the government made most of the discovery available to Vincent, through September 20th. During that span, Vincent could prepare for trial in ways that did not require close visual acuity. Indeed, defendant took advantage of that time by interviewing witnesses. Furthermore, Vincent has not shown that he suffered any prejudice from the denial. Defendant asserts that he needed more time to examine the paper discovery and to prepare his cross-examination of the government’s witnesses. Despite am: pie time since trial,"
},
{
"docid": "3796617",
"title": "",
"text": "575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), citing Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940). The Court has cautioned that “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality,” but that “[tjhere are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Id.; see also Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (trial courts have broad discretion with regard to continuances, and “only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel”) (internal quotation marks omitted). In line with that precedent, we have recognized that “[tjhere are times when the criminal justice system would be poorly served by allowing the defendant to reverse his course at the last minute and insist upon representation by counsel.” Menefield, 881 F.2d at 700. A continuance may be denied even where it results in the defendant being unrepresented at trial. United States v. Thompson, 587 F.3d 1165, 1174 (9th Cir.2009) (listing factors to be balanced when a decision to grant or deny a continuance implicates a defendant’s Sixth Amendment right to counsel, including “whether the continuance would inconvenience witnesses, the court, counsel, or the parties; [ ] whether other continuances have been granted; [ ] whether legitimate reasons exist for the delay; [ ] whether the delay is the defendant’s fault; and [] whether a denial would prejudice the defendant”), citing United States v. Studley, 788 F.2d 934, 938 (9th Cir.1986) and United States v. Leavitt, 608 F.2d 1290, 1293 (9th Cir.1979); see also Faretta, 422 U.S. at 852, 95 S.Ct. 2525 (Blackmun, J., dissenting) (pointing out the procedural dilemmas raised by the self-representation rule). The court of appeal reasonably"
},
{
"docid": "16513744",
"title": "",
"text": "1, 11, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983). We will not disturb a district court's decision to deny a continuance unless the district court abused its discretion. United States v. Bush, 820 F.2d 858, 860 (7th Cir.1987). To establish an abuse of discretion, Joyner must show that actual prejudice resulted from the denial. United States v. Hamm, 786 F.2d 804, 806 (7th Cir.1986). [O]nly an unreasoning and arbitrary `insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel.\" Id. 461 U.S. at 11-12, 103 S.Ct. at 1616 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)). The record shows that the district court was more than justified in proceeding to trial under the circumstances. Joyner presented her request for a continuance on the eve of trial. The court had already allowed Joyner one opportunity without explanation to obtain new counsel and appointed new counsel two weeks before trial. Joyner's new appointed counsel informed the judge that he had prepared the case, that he had reviewed all the case documents, and that he had served trial subpoenas on Joyner's behalf. The district court had observed appointed counsel in court on previous occasions and felt that Joyner was receiving good representation. Finally, the district court noted that witnesses from Greece and other outlying areas were present to testify and it would be difficult to reassemble them at a later date. Given these circumstances-the lateness of the request, the judge's accommodation of Joyner's previous request for new appointed counsel, the presence of foreign witnesses, the adequacy and preparation of appointed counsel-the district court was well within its discretion in denying the continuance. The district court balanced the various interests involved to make its determination; we will not second-guess a decision that was supported by the record. Furthermore, Joyner does not claim that she was actually prejudiced by appointed counsel's performance. Joyner argues that she was prejudiced because she could not proceed with counsel of her choice in whom she had confidence. Joyner's argument can"
},
{
"docid": "17657536",
"title": "",
"text": "request is denied’”) (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849-50, 11 L.Ed.2d 921 (1964)) (emphasis supplied). We detect no error. In the analogous context of a challenge to a denial of a defendant’s motion to substitute counsel, we have stated that we will “consider several factors, including the timeliness of the motion, the adequacy of the court’s inquiry into the defendant’s complaint, and whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense.” United States v. Allen, 789 F.2d 90, 92 (1st Cir.), cert. denied, 479 U.S. 846, 107 S.Ct. 164, 93 L.Ed.2d 103 (1986). Of course, we are aware that the trial court has a superior vantage point for evaluating matters such as these; we therefore will reverse only if we perceive an abuse of discretion. See id. We also are mindful that when, as here, the granting of the defendant’s request would almost certainly necessitate a last-minute continuance, the trial judge’s actions are entitled to extraordinary deference. As the Supreme Court has stated: Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary “insistence upon expeditiousness in the face of a justifiable request for delay” violates the right to assistance of counsel. Morris v. Sloppy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1615-17, 75 L.Ed.2d 610 (1983) (quoting Ungar, 376 U.S. at 589, 84 S.Ct. at 849-50). In view of all these considerations, the trial court’s decisions pass muster. Taking first the final Allen factor, we note that, while Pierce has adduced proof that his relationship with Growe was beset with problems, he has not established a total lack of communication preventing an adequate defense. The record reveals that Growe and Pierce were conversing with one"
},
{
"docid": "23094666",
"title": "",
"text": "counts seems eminently reasonable in comparison to Ortiz and some of the cases cited therein. Ortiz, 742 F.2d at 717. Unpersuaded by Deleonardis’ Eighth Amendment argument, we affirm his sentence. VI. Other Issues Abbamonte argues that he was denied effective assistance of counsel because the district court denied his motion for adjournment. He contends that this deprived counsel of adequate time to prepare for trial and, in particular, to review the tape recordings. We disagree. The trial judge has broad discretion in deciding whether to grant a continuance. Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983). Only an “unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel.” Id. at 11-12, 103 S.Ct. at 1616 (citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)). That is not this case. Judge Carter exercised sound discretion in denying Abbamonte’s motion for adjournment. The Government provided Abbamonte with tapes of the conversations it intended to use at trial and with adequate access to the original Lewisburg tapes. The trial record demonstrates that Abbamonte received the effective assistance of counsel. Finally, Abbamonte and Paradiso argue, and the Government concedes, that they should not have been sentenced on Count One, the conspiracy count, unless their respective convictions for operating a CCE and aiding and abetting such operation are overturned. We agree. Thus, in accordance with United States v. Aiello, 771 F.2d 621 (2d Cir.1985); United States v. Osorio Estrada, 751 F.2d 128 (2d Cir. 1984), cert. denied, 474 U.S. 830, 106 S.Ct. 97, 88 L.Ed.2d 79 (1985), we “combine” Abbamonte’s conviction for conspiracy into the greater offense of CCE. Since Paradiso’s aiding and abetting conviction is reversed, however, his conspiracy conviction and sentence therefor stand. Judgment in accordance with opinion. . The district court concluded that Title III did not apply to the monitoring of inmate conversations at Lewisburg because it was conducted \"by an investigative or law enforcement officer in the ordinary course of his duties.” 18"
},
{
"docid": "3212206",
"title": "",
"text": "had he wished to do so, even if he truly could not find other counsel. Moreover, there is cause for skepticism regarding Donziger’s claim that he had been unable to do so. His decision not to do so did not transform this Court’s routine fixing of a briefing schedule into a Rule 65(a) or due process violation. The standard governing Donziger’s contention is clear: The Second Circuit’s “precedent instructs us to be ‘particularly solicitous of a district court’s ruling on a motion to adjourn the scheduled start of a trial proceeding.’ Sequa Corp. v. GBJ Corp., 156 F.3d 136, 147-48 (2d Cir.1998). We will not disturb such a ruling absent a showing of ‘clear abuse.’ Id. ‘[T]o make that showing, the complaining party must establish both that the denial of the adjournment was arbitrary, and that it substantially impaired the presentation of his case.’ Id.; accord Farias v. Instructional Sys., Inc., 259 F.3d 91, 99-100 (2d Cir.2001) (identifying no abuse where, on first day of trial, court denied continuance to obtain absent witness and noting that decisions regarding trial adjournments ‘rest within the sound discretion of the trial court and will be overturned only’ where ‘there is showing both of arbitrariness and of prejudice to the defendant’); cf. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964) (‘The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel:).” As this standard governs with respect to trial adjournments in criminal cases, where the moving party may be deprived of his liberty, district judges necessarily have at least as much latitude with respect to adjournments of and briefing schedules on motions for preliminary injunctions in civil cases, where the remedy in question is provisional only and the stakes are far less weighty. The Court’s scheduling decisions ruling fell comfortably within the appropriate degree of latitude, as they were reasoned determinations based on the facts"
},
{
"docid": "3891700",
"title": "",
"text": "that the government’s revelation that it had obtained checks likely to be introduced as evidence necessitated a continuance for Griffin to analyze the checks. Granting or denying a continuance is a matter within the discretion of the district court. “Broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616-17, 75 L.Ed.2d 610 (1982), citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849-50, 11 L.Ed.2d 921 (1964). We also look to the standard announced in Ungar to determine whether the district court has abused its discretion in denying a continuance. “There are no mechanical tests for deciding when a denial for continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” United States v. Wirsing, 719 F.2d 859, 866 (6th Cir.1983), quoting Ungar, 376 U.S. at 589, 84 S.Ct. at 850. “[W]e look for a showing from the defendant of prejudice, i.e., a showing that the continuance would have made relevant witnesses available, or would have added something to the defense.” Wirsing, 719 F.2d at 866, quoting United States v. Faulkner, 538 F.2d 724, 729-30 (6th Cir.1976). The superseding indictment in this case dropped one count charging misapplication. It also delineated defendants’ interests in Quadel Corporation and added Norman Watson’s name to the counts alleging violations of 18 U.S.C. §§ 215 and 2. The checks complained of by Griffin are checks from Quadel to Frost, Griffin, OEA and other partnerships in which defendants held interests. Defendants have failed to show the required prejudice. Their primary concern, the “virtual waste” of time and resources by counsel to prepare a defense against the dropped charge, is not sufficient to show a violation of due process. The district court did not abuse its discretion by denying a"
},
{
"docid": "9871085",
"title": "",
"text": "Burton was not represented by his original choice for retained counsel, Thomas War-shaw, because a personal disagreement developed between the two and because Burton’s financial circumstances were such that he could no longer afford privately retained counsel. J.A. at 157-58 (Mot. to Clarify Def.’s Representation at 6-7) (Test, of Thomas Warshaw); J.A. at 161-62 (Mot. to Clarify Def.’s Representation at 10-11) (Test, of Kumal Burton); see Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989) (“Petitioner does not, nor could it defensibly do so, assert that impecunious defendants have a Sixth Amendment right to choose their counsel. The Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts.”). Because the Michigan Court of Appeals’s denial of Burton’s claim was not contrary to or an unreasonable application of Supreme Court precedent regarding the Sixth Amendment right to counsel of choice, federal habeas corpus review affords Burton no relief. Even if Burton’s claim is viewed as a constitutional challenge to the denial of his motion for a continuance, it cannot be said that the Michigan Court of Appeals’s decision was contrary to or an unreasonable application of Supreme Court precedent. Denial of a continuance rises to the level of a constitutional violation only when there is “an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’....” Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)); see Ungar, 376 U.S. at 591, 84 S.Ct. 841 (“These matters are, of course, arguable, and other judges in other courts might well grant a continuance in these circumstances. But the fact that something is arguable does not make it unconstitutional.”). The circumstances of a particular case determine whether the denial of a continuance is so arbitrary as to violate due"
},
{
"docid": "1257076",
"title": "",
"text": "administration of justice,” United States v. Cicale, 691 F.2d 95, 106 (2d Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1771, 76 L.Ed.2d 344 (1983). The matter of whether or not to adjourn a trial date “is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964); see Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940). Thus, “ ‘where the inability of retained counsel to serve gives promise of unreasonable delay or inconvenience in completing the trial, the court may require the defendant to secure other counsel.’ ” United States v. Cicale, 691 F.2d at 106 (quoting United States v. Bentvena, 319 F.2d 916, 936 (2d Cir.), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963)). “[0]nly an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616-1617, 75 L.Ed.2d 610 (1983) (quoting Ungar v. Sarafite, 376 U.S. at 589, 84 S.Ct. at 849). We see no abuse of discretion in the court’s insistence on the May 4, 1987 date. The date was set three and one-half months in advance; though repeated requests were made for an adjournment until September, there was no guarantee, as Slotnick conceded, that Slotnick would be available in September. The case had been pending more than two years, Montemarano was awaiting trial, and it made little sense to try him and Scopo separately in light of the overlapping charges. Scopo was forewarned in January 1987 that Slotnick could not represent him at trial in May, and from that time on, the court repeatedly made it clear that it would not adjourn the May 4 date and ordered Scopo to find new counsel. Plainly, Scopo was given ample"
},
{
"docid": "15124929",
"title": "",
"text": "a continuance is a matter of discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); Bennett v. Scroggy, 793 F.2d 772, 774-75 (6th Cir.1986). As we held in Powell v. Collins, “[a]bsent proof of a violation of a specific constitutional protection, a habeas petitioner must show that a trial error was so egregious as to deprive him of a fundamentally fair adjudication, thus violating constitutional principles of due process.” 332 F.3d 376, 396 (6th Cir.2003) (citing Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir.1988)). The denial of a continuance constitutes a constitutional violation only when there is “an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ .... ” Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (quoting Ungar, 376 U.S. at 589, 84 S.Ct. 841). As Morris and Ungar indicate, the denial of a continuance will rarely give rise to a constitutional violation and “[t]he circumstances of a particular ease determine whether the denial of a continuance is so arbitrary as to violate due process.” Burton v. Renico, 391 F.3d 764, 773 (6th Cir.2004) (citing Ungar, 376 U.S. at 589, 84 S.Ct. 841). In addition, “[t]o demonstrate reversible error, the defendant must show that the denial resulted in actual prejudice to his defense.” United States v. King, 127 F.3d 488, 487 (6th Cir.1997) (internal quotation marks and citation omitted). “Actual prejudice may be demonstrated by showing that additional time would have made relevant witnesses available or otherwise benefited the defense.” Powell, 382 F.3d at 396. The relevant factors in determining whether a continuance was properly denied include: (1) the length of the requested delay; (2) whether other continuances had been requested and granted; (3) whether the delay was for legitimate reasons; (4) the inconvenience to the parties, witnesses, counsel, and the court; (5) whether the defendant contributed to the circumstances giving rise to the request; (6) whether denying the continuance resulted in prejudice to the defendant; and (7) the complexity of the case. See id. (citing United States v. Burton,"
},
{
"docid": "23160457",
"title": "",
"text": "Opinion by Judge PREGERSON; concurrence by Judge FERNANDEZ PREGERSON, Circuit Judge: Defendant Floyd Lentellis Garrett appeals his convictions on two counts related to an armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d), and (2); and 18 U.S.C. § 924(c)(1) and (2). The district court denied Garrett’s motion for continuance on the eve of trial. Garrett contends that, in denying this continuance, the district court committed reversible error. A divided panel of this court reversed Garrett’s convictions. See United States v. Garrett, 149 F.3d 1018 (9th Cir.1998). We granted rehearing en banc and withdrew the panel opinion. See United States v. Garrett, 161 F.3d 583 (9th Cir.1998). We write today to make it clear that when we review a district court’s ruling granting or denying a motion for a continuance the applicable standard of review is abuse of discretion. This standard is consistent with the Supreme Court’s decision in Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) where the Court stated that “broad discretion must be granted trial courts on matters of continuances.” The Court wrote: Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary ‘insistence upon the expeditiousness in the face of a justifiable request for delay’ violates the right to assistance of counsel. Id at 11-12, 103 S.Ct. 1610 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)). Morris does not require either the defendant or the government to establish a compelling reason to obtain a continuance. To the extent that United States v. Lillie, 989 F.2d 1054, 1056 (9th Cir.1993), and United States v. D’Amore, 56 F.3d 1202, require a trial court to find a compelling reason before granting or denying a continuance, they are overruled. Here, the record demonstrates"
},
{
"docid": "14177210",
"title": "",
"text": "habeas judge might disagree with, so long as the state court’s analysis is reasonable. Id. at 81. But this analysis does not apply when the state court decision does not cite Strickland. As noted, when a federal claim is properly presented for purposes of exhaustion, but not addressed by the state court, it must be considered de novo by the reviewing federal court. Fortini, 257 F.3d at 47 (1st Cir.2001). This court held in a prior proceeding that Campiti had exhausted his federal claim of ineffective assistance of counsel to the extent that this deficiency occurred prior to trial. (Docket 33 at 5). Campiti cited Strickland and several other federal cases in support of this claim in his state court brief, and thus clearly maintained that he was deprived of the effective assistance of counsel in violation of the federal constitution. (Docket 12, Tab 1 at 100-101). Yet the Massachusetts Appeals Court only addressed Campiti’s claim under state law. 41 Mass.App. Ct. at 59-61, 668 N.E.2d 1308. Therefore, Fortini requires that this court apply the Strickland test de novo to Campiti’s claim of ineffective assistance of counsel. 2. Strickland Analysis a. Performance The trial judge’s denial of Rubin’s request for a continuance did not render his performance deficient. As the Appeals Court pointed out, Rubin ended up with almost three and a half months to prepare for trial. 41 Mass.App.Ct. at 59, 668 N.E.2d 1308. This was more than adequate time, and the trial court’s denial could not have rendered Rubin’s performance deficient. The Supreme Court has held that “broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). Thus, Rubin’s performance was not constitutionally deficient. Rubin’s decision to file the same suppression motion as the lead counsel representing his co-defendants also did not render"
}
] |
82293 | resulted. C. A Valid Waiver I am confident that the informant did not communicate any defense strategy to the government. Assuming for the sake of argument, however, that the tapes do reveal strategy, I find that Massino’s attorney, David Breitbart, made a valid waiver of his client’s right to maintain the government’s firewall. In New York v. Hill, 528 U.S. 110, 115, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000), the Supreme Court held that counsel may waive certain rights of the defendant, and, with respect to such waivers, “[ajbsent a demonstration of ineffectiveness, counsel’s word on such matters is the last.” Similarly, the Second Circuit divides criminal defendants’ rights into two categories, and applies a different waiver standard to each. REDACTED According to the Plitman court: [t]he first category involves rights that defense counsel may waive on behalf of defendant because they concern strategic and tactical matters such as the selective introduction of evidence, stipulations, objections and pre-trial motions. The second category involves rights that only the defendant himself may waive because they are “personal” and include matters like pleading guilty, waiving a jury trial, pursuing an appeal, and deciding to testify. Id. Except for the one exception I described above with respect to structure, the recorded conversations contain only information that could be used as evidence. If counsel may stipulate to evidence at trial, he certainly may allow the government access to information that might potentially be used as evidence | [
{
"docid": "2080403",
"title": "",
"text": "(2d Cir.1990)). With this standard in mind, we look to the substance of Plitman’s challenge to his counsel’s waiver. Criminal defendants possess two types of constitutional rights, and a different waiver standard applies to each. See Brown v. Artuz, 124 F.3d 73, 77 (2d Cir.1997) (citing United States v. Teague, 953 F.2d 1525, 1531 (11th Cir.1992) (in banc)), cert. denied, 522 U.S. 1128, 118 S.Ct. 1077, 140 L.Ed.2d 135 (1998). The first category involves rights that defense counsel may waive on behalf of defendant because they concern strategic and tactical matters such as selective introduction of evidence, stipulations, objections, and pre-trial motions. See id. The second category involves rights that only defendant himself may waive because they are “personal” and include matters like pleading guilty, waiving a jury trial, pursuing an appeal, and deciding to testify. See id. at 77-78. When defendants personally waive their rights, the waivers “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In her post-trial decision, Judge Preska held that Plitman’s counsel made a valid waiver of his client’s confrontation rights because the evidentiary stipulation did not implicate a personal right. We have not decided specifically whether and under what circumstances defense counsel may waive a defendant’s right to confrontation. Our opinion in Brown v. Artuz suggests that defense counsel may make the waiver where a stipulation involves trial strategy and tactics, even though the stipulation impacts on a defendant’s constitutional rights. See Brown, 124 F.3d at 77. Other circuit courts of appeals have held that “counsel in a criminal case may waive his client’s Sixth Amendment right of confrontation by stipulating to the admission of evidence, so long as the defendant does not dissent from his attorney’s decision, and so long as it can be said that the attorney’s decision was a legitimate trial tactic or part of a prudent trial strategy.” United States v. Stephens, 609 F.2d 230, 232-33 (5th Cir.1980); see also Wilson v."
}
] | [
{
"docid": "3069373",
"title": "",
"text": "the stipulation, he was waiving that right. Moreover, the court of appeals found that the state failed to meet its burden under Boykin v. Alabama, 395 U.S. 238, 244 & n. 7, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), to insure that the record reflected a valid waiver. The court thus concluded that there was no valid waiver by Hawkins, and consequently, the hearsay testimony of the victim’s account of the attack and her identification of the attacker was admitted in violation of Hawkins’ right to confront his accuser. Nevertheless, the court of appeals ruled that counsel was not ineffective, as counsel’s decision to enter the stipulation was a matter of reasonable trial strategy. On federal habeas review, the district court agreed that the stipulation reflected a reasonable strategic decision not to have the elderly victim testify at Hawkins’ jury trial. The court reasoned that defense counsel’s apparent surprise at the scope of the stipulation simply indicated counsel’s mistaken assessment of the risk in his strategy of keeping the victim off the stand. See Hawkins, 979 F.Supp. at 1402. The court concluded that in any event, Hawkins could not establish prejudice under Strickland, in light of the other evidence before the jury. The precise issue before us is whether Hawkins’ counsel, by stipulating to the admission of hearsay evidence, properly waived his client’s constitutional confrontation rights. This issue was addressed in United States v. Stephens, 609 F.2d 230 (5th Cir.1980). In Stephens, the appellants had been charged along with five other individuals in a multi-count indictment, and the court ordered appellants’ trial to be severed from their codefend-ants. See id. at 231. At appellants’ bench trial, defense counsel stipulated to the admission of the transcript from the code-fendants’ trial in exchange for the government’s agreement to drop all but one of the substantive counts against the appellants. See id. at 231-32. Appellants argued that counsel’s stipulation effectively denied them their Sixth Amendment right of confrontation. See id. at 232. The Fifth Circuit rejected the argument and held that “counsel in a criminal case may waive his client’s Sixth Amendment right"
},
{
"docid": "17855604",
"title": "",
"text": "case, does not prevent a defendant from including explicit language that a stipulation shall only be valid if it is read to the jury. We do not find any such requirement in the language of the stipulations in the record in this case. In this respect, we are guided by the reasoning of the Supreme Court in New York v. Hill, — U.S. -, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000). In Hill, the defendant claimed that his agreement to a trial date outside the speedy trial period guaranteed by applicable law did not serve as a waiver of his speedy trial rights. The Court disagreed, noting this would make waiver “turn on a hypertechnical distinction that should play no part.” Id. at 666. Instead, the Court reasoned that defense counsel’s act of accepting the proposed trial date was sufficient to act as a waiver. We similarly conclude that the stipulations in the instant matter were sufficient to waive the appellant’s right to require the government to introduce any evidence on the stipulated elements, including the stipulations. III. Conclusion We conclude that defendant’s stipulation to the interstate commerce and prior conviction elements of a § 922(g) charge waived his right to contest the government’s failure to introduce any evidence on those stipulations, including a failure to read those stipulations to the jury. The stipulations were filed with the district court, the jury was made aware of them, and the jury found all of the elements to exist. Accordingly, we affirm the judgment of the district court. . 18 U.S.C. § 922(g) provides: II shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm or ammunition .... . Harrison also appeals two evidentiary rulings and further claims that the stipulations were not final. We have examined these arguments and find them to be without merit."
},
{
"docid": "16417459",
"title": "",
"text": "States v. Crutcher, 405 F.2d 239, 244 (2d Cir.1968)). Furthermore, “[w]e have not decided specifically whether and under what circumstances defense counsel may waive a defendant’s right to confrontation,” but we have said that the “rights that defense counsel may waive on behalf of defendant [are those that] concern strategic and tactical matters.” United States v. Plitman, 194 F.3d 59, 63 (2d Cir.1999). The Supreme' Court has recently reiterated that “[w]hat suffices for waiver depends on the nature of the right at issue.” New York v. Hill,-U.S.-, 120 S.Ct. 659, 664, 145 L.Ed.2d 560 (2000) (holding that defense counsel can effectively waive a defendant’s right to be brought to trial on a specified date under the Interstate Agreement on Detainers). The Court noted the difference between a) “certain fundamental rights,” which require a defendant’s personal waiver, and b) other “decisions pertaining to the conduct of the trial,” which the attorney may make and to which the defendant is deemed bound. Id. As examples of the former, the Court cited the right to representation by counsel and the right to plead not guilty; for the latter, the Court cited decisions by counsel concerning what arguments to pursue, what evi-dentiary objections to raise, and what agreements to conclude regarding the admission of evidence. See id. Given this precedent, we have no difficulty finding under the facts of the instant case that Clark’s right to be present at his Wade hearing was voluntarily and knowingly waived. Although there is no record waiver by Clark personally, the court in its colloquy with defense counsel alludes to a conversation that was held the day before in which “[cjounsel agreed yesterday at a side bar conference that we would continue the hearing at this point without the presence of their clients in the courtroom because they wanted to make certain that any identification that took place would not be re[i]nforced by their presence here at the defense table.” We reject Clark’s contention that this statement by the court shows that his defense attorney “merely acquiesced” in the court’s suggestion that he be kept out of the"
},
{
"docid": "23086827",
"title": "",
"text": "the former category are matters that “primarily involve trial strategy and tactics,” such as “what evidence should be introduced, what stipulations should be made, what objections should be raised, and what pre-trial motions should be filed.” Id. Included in the latter category of decisions “personal” to the defendant are, for instance, the decisions whether to enter a guilty plea, see Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969), whether to waive a jury trial, see Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942), and whether to pursue an appeal, see Fay v. Noia, 372 U.S. 391, 438-40, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (1963). The question now before us is whether the defendant’s right to testify on his own behalf is one of these “personal” rights. If it is, then the defendant must be allowed to testify if he so desires, regardless of strategic considerations that his lawyer concludes weigh against such a decision. If the right is not personal to the defendant, then trial counsel could prevent the defendant from testifying even when the defendant insists on taking the stand. Arguments are available to support either position. It might be argued, for instance, that once a defendant waives his right to self-representation and retains counsel to represent him during trial, he thereby forfeits his right to determine all tactical aspects of the conduct of trial, including whether certain objections will be made, how a cross-examination of a prosecution witness will be conducted, and which witnesses, including the defendant himself, will testify for the defense. Because the decision whether the defendant will testify requires weighing the potential benefits against numerous dangers, it might well be left to defense counsel, like other strategic decisions. Defense counsel has superior experience with the criminal process and detailed, objective knowledge of the strengths and weaknesses in the defendant’s case. At least one concurring opinion, predating Rock, has accepted this argument, noting that the ultimate decision must reside with trial counsel because “[n]o one could seriously"
},
{
"docid": "2080401",
"title": "",
"text": "The government’s direct case also consisted of documentary evidence including tax returns and bank records. The jury convicted Plitman on both counts of tax evasion. The district court denied Plitman’s motion for acquittal or a new trial by a memorandum and order dated January 25, 1999. Judge Preska sentenced Plitman to one year and one day imprisonment, two years supervised release, and a $100 special assessment. Plit-man now appeals his conviction. DISCUSSION I. Sixth amendment right to confrontation Appellant claims a violation of his Sixth Amendment right to confront the witnesses against him. Specifically, Plitman contends that the district court committed plain error when it permitted Agent O’Keeffe to testify regarding his conversation with Belility because the testimony was inadmissible hearsay and defense counsel could not stipulate to the evidence’s admission. Plitman argues that the stipulation was invalid because (1) he did not waive the right and defense counsel never said that his client waived the right and/or knew the risks involved; and (2) matters of trial strategy did not justify defense counsel’s action. The government does not dispute that O’Keeffe’s testimony was hearsay and not within an exception to the hearsay rule. Rather, the government contends that Plitman’s stipulation through counsel was a valid waiver like any ordinary evidentiary stipulation in a trial. According to the government, nearly all evidentiary stipulations involve some loss of the right to confront witnesses, but our criminal justice system relies on the ability of defense counsel to decide what ultimately benefits their clients. The parties agree that the plain error standard applies to this issue, which defendant did not raise at trial. A plain error affects defendant’s substantial rights and must “seriously affectf] the fairness, integrity, or public reputation of judicial proceedings” in order to warrant action on appeal. United States v. Gore, 154 F.3d 34, 42 (2d Cir.1998) (internal quotation marks omitted). The error must be “ ‘so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant’s failure to object.’ ” Id. at 43 (quoting United States v. Tillem, 906 F.2d 814, 825"
},
{
"docid": "2080406",
"title": "",
"text": "counsel agreed to waive defendant’s right to confrontation. See Clemmons, 124 F.3d at 956. We decline to follow the court’s statement in dicta that counsel’s waiver nonetheless would have been ineffective. We recognize that examination of the circumstances of each case is essential when considering any waiver of constitutional rights because “Variations in the factual context giving rise to the issue of waiver of any one right of the accused are infinite.” Wilson, 345 F.2d at 290. We also recognize that we must accord proper weight to the role of defense counsel in fashioning an overall trial strategy, including one involving waiver of the right to confrontation, for the defendant’s best advantage. See id. at 289-90. A well developed body of case law protects defendants from constitutionally defective actions of their attorneys. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Given these safeguards, we reject Plitman’s argument that a defendant in every instance personally must waive the right to confront the witnesses against him. We therefore join the majority of circuit courts of appeals and hold that defense counsel may waive a defendant’s Sixth Amendment right to confrontation where the decision is one of trial tactics or strategy that might be considered sound. Turning to Plitman’s appeal, the facts clearly support Judge Preska’s conclusion that defendant’s waiver of Sixth Amendment rights through counsel was valid. Plitman achieved several tactical advantages as a result of his decision to allow the hearsay testimony of O’Keeffe. Those advantages included a quicker trial date, limitations on Belility’s testimony, and the opportunity to attack the accuracy of O’Keeffe’s notes and recollection of the hearsay conversation. Plitman’s challenges to the prudence of the tactical decision are unavailing. The transcript of the May 7, 1998, pretrial conference clearly demonstrates that the government did not anticipate the fast trial date and wanted to bring Belility to the United States as a live witness who could supply additional evidence incriminating Plitman. The same pretrial conference shows that defense counsel wanted a quick trial and stipulation in order to avoid Belility’s testimony. Plitman"
},
{
"docid": "22075087",
"title": "",
"text": "testify “is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony.” Id. With this discussion, the Court put to rest any doubt that a criminal defendant has a constitutional right to testify in his own defense. However, this right is not unlimited. For example, the right to testify clearly does not include the right to commit perjury. See Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). Neverthe less, as the Supreme Court stated in Rock, “restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve.” 483 U.S. at 55-56, 107 S.Ct. at 2711-12; cf. Chambers v. Mississippi, 410 U.S. 284, 295, 302, 93 S.Ct. 1038, 1045, 1049, 35 L.Ed.2d 297 (1973) (The defendant’s right to present witnesses in his own defense is subject to other legitimate interests in the criminal trial process such as the established rules of evidence and procedure.) In the case at bar, however, Teague claims that he was prevented from testifying, not by the government or the court, but by his own lawyer. We are thus called upon to determine whether defense counsel is empowered to waive defendant’s right to testify. Criminal defendants possess essentially two categories of constitutional rights: those which are waivable by defense counsel on the defendant’s behalf, and those which are considered “fundamental” and personal to defendant, waivable only by the defendant. Generally included in the former are matters which primarily involve trial strategy and tactics. See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). Examples of such matters are what evidence should be introduced, what stipulations should be made, what objections should be raised, and what pre-trial motions should be filed. See 1 Standards for Criminal Justice, Standard 4-5.2 comment (2d ed. 1980). Examples of fundamental decisions which only the defendant is empowered to waive are entry of a guilty plea, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), waiver of a jury trial, Adams v. United States ex rel. McCann, 317"
},
{
"docid": "12608645",
"title": "",
"text": "trial management matters without any requirement that the defendant personally acquiesce. See New York v. Hill, 528 U.S. 110, 115, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000); Taylor v. Illinois, 484 U.S. 400, 417-18, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988); cf. Gonzalez v. United States, 553 U.S. 242, 250, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2008) (explaining that “[t]o hold that every instance of waiver requires the personal consent of the client himself or herself would be impractical”). In such instances, “the defendant is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney.” Hill, 528 U.S. at 115, 120 S.Ct. 659 (internal quotation marks omitted). Several courts have applied this principle in the STA context. See, e.g., United States v. Bryant, 134 F.3d 364 (4th Cir.1998) (unpublished table decision) (stating, in STA context, that the district judge was entitled to conclude that the defendant’s counsel spoke for him); United States v. Fields, 39 F.3d 439, 443 (3d Cir.1994) (finding fault with defendant’s argument that “he would have us order the dismissal of his indictment based on continuances that his own attorney sought”); United States v. Troy, 564 F.Supp.2d 42, 47 (D.Me.2008) (noting, in STA context, that “[t]he adversary process could not function effectively if every tactical decision required client approval” (internal quotation marks omitted)). We agree with these authorities. We hold, therefore, that in the ordinary course and within the confines of the STA exclusion provisions, defense counsel has the power to seek an STA continuance without first informing his client or obtaining his client’s personal consent. See Hill, 528 U.S. at 115, 120 S.Ct. 659 (holding that attorney’s statement, without any showing of client’s explicit consent, could waive speedy trial right under Interstate Agreement on Detainers). To be sure, there may be exceptional circumstances in which an attorney’s naked imprimatur can be called into question. Such circumstances could include, say, a lawyer’s intentional foot-dragging for his own purposes and to his client’s detriment. Cf. United States v. Pringle, 751 F.2d 419,"
},
{
"docid": "2080405",
"title": "",
"text": "Gray, 345 F.2d 282, 287-88 (9th Cir.1965); Cruzado v. Puerto Rico, 210 F.2d 789, 791 (1st Cir.1954). But see Clemmons v. Delo, 124 F.3d 944, 956 (8th Cir.1997) (stating that “the law seems to be clear that the right of confrontation is personal and fundamental and cannot be waived by counsel”), cert. denied, 523 U.S. 1088, 118 S.Ct. 1548, 140 L.Ed.2d 695 (1998). In a case similar to the one before us, the Tenth Circuit Court of Appeals recently held that defense counsel could stipulate to the admission of hearsay evidence in which a police chief relayed the identification of defendant by the elderly crime victim, who did not testify at trial. See Hawkins v. Hannigan, 185 F.3d 1146, 1154-56 (10th Cir.1999). The Tenth Circuit found no Sixth Amendment violation because there was no indication that defendant disagreed with or objected to counsel’s decision and the stipulation “was a matter of prudent trial strategy.” Id. at 1154-55. The Eighth Circuit in Clemmons faced an entirely different set of facts in which neither defendant nor his counsel agreed to waive defendant’s right to confrontation. See Clemmons, 124 F.3d at 956. We decline to follow the court’s statement in dicta that counsel’s waiver nonetheless would have been ineffective. We recognize that examination of the circumstances of each case is essential when considering any waiver of constitutional rights because “Variations in the factual context giving rise to the issue of waiver of any one right of the accused are infinite.” Wilson, 345 F.2d at 290. We also recognize that we must accord proper weight to the role of defense counsel in fashioning an overall trial strategy, including one involving waiver of the right to confrontation, for the defendant’s best advantage. See id. at 289-90. A well developed body of case law protects defendants from constitutionally defective actions of their attorneys. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Given these safeguards, we reject Plitman’s argument that a defendant in every instance personally must waive the right to confront the witnesses against him. We therefore join the"
},
{
"docid": "2080404",
"title": "",
"text": "U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In her post-trial decision, Judge Preska held that Plitman’s counsel made a valid waiver of his client’s confrontation rights because the evidentiary stipulation did not implicate a personal right. We have not decided specifically whether and under what circumstances defense counsel may waive a defendant’s right to confrontation. Our opinion in Brown v. Artuz suggests that defense counsel may make the waiver where a stipulation involves trial strategy and tactics, even though the stipulation impacts on a defendant’s constitutional rights. See Brown, 124 F.3d at 77. Other circuit courts of appeals have held that “counsel in a criminal case may waive his client’s Sixth Amendment right of confrontation by stipulating to the admission of evidence, so long as the defendant does not dissent from his attorney’s decision, and so long as it can be said that the attorney’s decision was a legitimate trial tactic or part of a prudent trial strategy.” United States v. Stephens, 609 F.2d 230, 232-33 (5th Cir.1980); see also Wilson v. Gray, 345 F.2d 282, 287-88 (9th Cir.1965); Cruzado v. Puerto Rico, 210 F.2d 789, 791 (1st Cir.1954). But see Clemmons v. Delo, 124 F.3d 944, 956 (8th Cir.1997) (stating that “the law seems to be clear that the right of confrontation is personal and fundamental and cannot be waived by counsel”), cert. denied, 523 U.S. 1088, 118 S.Ct. 1548, 140 L.Ed.2d 695 (1998). In a case similar to the one before us, the Tenth Circuit Court of Appeals recently held that defense counsel could stipulate to the admission of hearsay evidence in which a police chief relayed the identification of defendant by the elderly crime victim, who did not testify at trial. See Hawkins v. Hannigan, 185 F.3d 1146, 1154-56 (10th Cir.1999). The Tenth Circuit found no Sixth Amendment violation because there was no indication that defendant disagreed with or objected to counsel’s decision and the stipulation “was a matter of prudent trial strategy.” Id. at 1154-55. The Eighth Circuit in Clemmons faced an entirely different set of facts in which neither defendant nor his"
},
{
"docid": "7339384",
"title": "",
"text": "involvement to counsel near the conclusion of the Government’s case-in-chief and thereafter failed to demonstrate a sound trial strategy in the presentation of Garcia’s ease. We will consider each of these deficiencies separately. Given our conclusion that these two deficiencies prejudiced Garcia, we need not address the other alleged deficiencies in the defense team performance. 1. The Article 32 Investigation Article 32 requires “a thorough and impartial investigation” before any charges or specifications may be referred to a general court-martial. At the investigation, the accused has the right to be represented by counsel, to cross-examine witnesses, and “to present anything he may desire in his own behalf.” Article 32, UCMJ. The Article 32 investigation “operates as a discovery proceeding for the accused and stands as a bulwark against baseless charges.” United States v. Samuels, 10 C.M.A. 206, 212, 27 C.M.R. 280, 286 (1959). The procedures, rights and duties applicable to an Article 32 investigation are specified in Rule for Courts-Martial 405 [R.C.M.]. Pursuant to R.C.M. 405(k), “[t]he accused may waive an [Article 32] investigation under this rule.” The precise form or procedure for a waiver is not specified, and whether the accused’s right to an Article 32 investigation is personal to the accused is an issue of first impression at this Court. As the Supreme Court has noted, “What suffices for waiver depends on the nature of the right at issue. ‘Whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.’ ” New York v. Hill, 528 U.S. 110, 114, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000)(quoting United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Garcia argues that his personal consent to the waiver of his right to an Article 32 investigation was required and we agree. On this record, it is undisputed that Garcia’s civilian defense counsel waived Garcia’s right to an Article 32 investigation without Garcia’s personal consent. We recognize that in many situations consent or waiver"
},
{
"docid": "7642672",
"title": "",
"text": "Procedure 23(a) by waiving his right to a jury trial in writing and with the approval of the government and the court. The judge conducted an in-depth colloquy in which he discussed with Preston each of the four aforementioned points, had Preston explain each, and made sure that Preston understood them all. Preston’s argument that the court was required to comply with Federal Rule of Criminal Procedure Rule 11, which sets forth necessary procedural steps for a defendant accepting a guilty plea, has no legal basis because Preston did not plead guilty. Preston’s waiver of his jury right was voluntary, knowing, and intelligent. C. Waiver of Right to Confrontation “[T]he accused may waive his right to ... confrontation and ... the waiver of this right may be accomplished by the accused’s counsel as a matter of trial tactics or strategy.” Wilson v. Gray, 345 F.2d 282, 286 (9th Cir.1965). At trial, Preston and his attorney agreed to admit TD’s recorded statement in lieu of having TD testify in person, and he argues that this stipulation violated his right to confrontation. It is clear that the trial counsel’s stipulation was a matter of trial strategy. Preston’s attorney opted to admit the recorded statements because he was content with the information contained therein and concerned that “children on the stand ... can say anything and go in any direction.” The district court did not plainly err by accepting this waiver and admitting TD’s recorded statements. See Hagege, 437 F.3d at 956. y. Preston argues that the expert testimony of the DNA analyst at trial did not meet the requirements of Rule 702 and should have been excluded as unfairly prejudicial under Federal Rule of Evidence 403. Preston’s assertion that the DNA evidence should have been excluded under Rule 403 depends largely on his argument that the evidence was unreliable. His argument fails. Rule 403 is inapplicable to bench trials. EEOC v. Farmer Bros. Co., 31 F.3d 891, 898 (9th Cir.1994); Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir.1994). Federal Rule of Evidence 702 states that expert testimony must be “the product"
},
{
"docid": "4223375",
"title": "",
"text": "the court-martial is adjourned constitutes a waiver absent good cause shown for not making the motion. RCM 905(e), Manual for Courts-Martial, United States (1998 ed.); see also RCM 907(b)(2)(D)(iv). As we said in United States v. Huffman, 40 MJ 225, 229 (CMA 1994): The purpose of these so-called “raise-or-waive” Manual Rules are to eliminate the expense to the parties and the public of rehearing an issue that could have been dealt with by a timely objection or motion at trial. Recently, the Supreme Court unanimously rejected the requirement for an affirmative waiver under the Interstate Agreement on Detainers. New York v. Hill, 528 U.S. 110, 120 S.Ct. 659, 666, 145 L.Ed.2d 560 (2000). The Court noted: For certain fundamental rights, the defendant must personally make an informed waiver ____ (right to counsel) ... (right to plead not guilty). For other rights, however, waiver may be effected by action of counsel. “Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has — and must have — full authority to manage the conduct of the trial.” ... As to many decisions pertaining to the conduct of the trial, the defendant is “deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’ ” ... Thus, decisions by counsel are generally given effect as to what arguments to pursue, ... and what agreements to conclude regarding the admission of evidence.... Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last. Id. at 664 (citations omitted). Except for Huffman, it would seem that the failure to make the motion in this case is the “last word” absent a claim of ineffectiveness. Id. Huffman is unworkable, and the impact on the system can now be seen. Since the Huffman decision, we have had numerous cases where the issue has not been raised before the court-martial is adjourned. United States v. Yunk, 53 MJ 145 (2000); United States v. Smith, 53 MJ 168 (2000);"
},
{
"docid": "16417458",
"title": "",
"text": "(holding that where absentee defendant offers a seemingly valid excuse, the' trial court must inquire into the circumstances of his absence to determine whether he has knowingly and voluntarily absented himself). The trial court is not free, of course, to impute a waiver in any conceivable circumstance. In Mackey, we refused to find a knowing and voluntary waiver of the defendant’s right to be present on the first day of trial, which included jury impanelment and testimony by two prosecution witnesses, where the record showed that the defendant was absent for part of that day due to transportation difficulties about which he had advised the court. See 915 F.2d at 73-74. We have explicitly repudiated a rule, however, that would require a defendant’s personal statement in court to bring about a constitutionally valid waiver of his right to be present. See Polizzi v. United States, 926 F.2d 1311, 1322 (2d Cir.1991). “Although it is certainly preferable that the waiver come from the defendant directly, there is no constitutional requirement to that effect.” Id. (citing United States v. Crutcher, 405 F.2d 239, 244 (2d Cir.1968)). Furthermore, “[w]e have not decided specifically whether and under what circumstances defense counsel may waive a defendant’s right to confrontation,” but we have said that the “rights that defense counsel may waive on behalf of defendant [are those that] concern strategic and tactical matters.” United States v. Plitman, 194 F.3d 59, 63 (2d Cir.1999). The Supreme' Court has recently reiterated that “[w]hat suffices for waiver depends on the nature of the right at issue.” New York v. Hill,-U.S.-, 120 S.Ct. 659, 664, 145 L.Ed.2d 560 (2000) (holding that defense counsel can effectively waive a defendant’s right to be brought to trial on a specified date under the Interstate Agreement on Detainers). The Court noted the difference between a) “certain fundamental rights,” which require a defendant’s personal waiver, and b) other “decisions pertaining to the conduct of the trial,” which the attorney may make and to which the defendant is deemed bound. Id. As examples of the former, the Court cited the right to representation by counsel"
},
{
"docid": "17855603",
"title": "",
"text": "an element of an offense waives his right to have the government put on evidence to prove that element. Specifically, we hold that when Harrison entered into the stipulations that the interstate commerce and prior conviction elements of the § 922(g) charge were present, he waived his right to challenge the sufficiency of the evidence on those elements, even though the government failed to introduce any evidence on those elements. This result retains a primary-benefit of this type of stipulation: when the element is a prior conviction, the defendant is benefitted because potentially prejudicial facts about the prior conviction will not be admitted. See Old Chief, 519 U.S. at 185, 117 S.Ct. 644; Hardin, 139 F.3d at 817; Muse, 83 F.3d at 678. Furthermore, stipulations in general are helpful to both parties because they narrow the scope of the trial to the real issues in dispute. See United States v. General Motors Corp., 518 F.2d 420, 447 (D.C.Cir.1975); Zuchowicz, 140 F.3d at 392. Today’s holding, in addition to not condoning the government’s conduct in this case, does not prevent a defendant from including explicit language that a stipulation shall only be valid if it is read to the jury. We do not find any such requirement in the language of the stipulations in the record in this case. In this respect, we are guided by the reasoning of the Supreme Court in New York v. Hill, — U.S. -, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000). In Hill, the defendant claimed that his agreement to a trial date outside the speedy trial period guaranteed by applicable law did not serve as a waiver of his speedy trial rights. The Court disagreed, noting this would make waiver “turn on a hypertechnical distinction that should play no part.” Id. at 666. Instead, the Court reasoned that defense counsel’s act of accepting the proposed trial date was sufficient to act as a waiver. We similarly conclude that the stipulations in the instant matter were sufficient to waive the appellant’s right to require the government to introduce any evidence on the stipulated elements, including"
},
{
"docid": "20312786",
"title": "",
"text": "into it. But I am going to explore the entire case.” (Id. at 85-86.) It is clear from this statement that defense counsel intentionally relinquished his (or rather, his client’s) confrontation right through his questioning of Johnson. This is not a case of ignorance or inadvertence and we do not decide what rule would apply in that context. The determination that a particular right has been waived “does not end our inquiry.” Aptt, 354 F.3d at 1281. The procedures and circumstances required for effective waiver depend on the right at stake. Id. Similar to waiver by stipulating to the admission of evidence, counsel in a criminal case may waive a client’s Sixth Amendment right of confrontation by opening the door, “so long as the defendant does not dissent from his attorney’s decision and so long as it can be said that the attorney’s decision was a legitimate trial tactic or part of a prudent trial strategy.” Id. at 1282 (quotations omitted); see also United States v. Dazey, 403 F.3d 1147, 1169 (10th Cir.2005) (“Defense counsel’s stipulation to admission of evidence effectively waives the defendant’s confrontation rights unless the defendant can show that the waiver constituted ineffective assistance of counsel.”). Here there is no indication Lopez-Medina dissented from his attorney’s decision to open the door. Similarly, there is no indication the decision was not a legitimate trial tactic. We find a Fifth Circuit case to be instructive. In United States v. Acosta, police officers discovered a large quantity of cocaine in a vehicle in which two individuals, Acosta and Marrufo, were traveling. 475 F.3d 677, 679 (5th Cir.2007). Marrufo pled guilty. He provided a statement ar ticulating the factual basis for his plea and a statement to qualify for a “safety valve” sentence reduction, both implicating Acosta in the crime. The court ordered him to testify at Acosta’s trial but he refused to answer several questions concerning Acosta’s participation even when asked about his prior statements. On cross-examination, Marrufo answered every question posed to him. Over the government’s objection, he testified he believed he would receive a more lenient sentence if"
},
{
"docid": "23086826",
"title": "",
"text": "this right were not answered by Rock and have not been resolved by this Circuit: (1) Is the decision whether to testify to be made by the defendant or his trial counsel? (2) If the decision is the defendant’s, does either the trial judge or the defendant’s attorney have a responsibility to inform the defendant of the existence and nature of this right? (3) If defense counsel has the responsibility to inform the defendant of his right to testify, what standard governs review of a claim that counsel failed to exercise that responsibility or even pre vented the defendant from testifying? We discuss each question in turn. 1. The Decision to Testify As the Eleventh Circuit stated in a comprehensive in banc opinion, criminal defendants at trial “possess essentially two categories of constitutional rights: those which are waivable by defense counsel on the defendant’s behalf, and those which are considered ‘fundamental’ and personal to the defendant, waivable only by the defendant.” United States v. Teague, 953 F.2d 1525, 1531 (11th Cir.1992) (in banc). Included in the former category are matters that “primarily involve trial strategy and tactics,” such as “what evidence should be introduced, what stipulations should be made, what objections should be raised, and what pre-trial motions should be filed.” Id. Included in the latter category of decisions “personal” to the defendant are, for instance, the decisions whether to enter a guilty plea, see Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969), whether to waive a jury trial, see Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942), and whether to pursue an appeal, see Fay v. Noia, 372 U.S. 391, 438-40, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (1963). The question now before us is whether the defendant’s right to testify on his own behalf is one of these “personal” rights. If it is, then the defendant must be allowed to testify if he so desires, regardless of strategic considerations that his lawyer concludes weigh against such a decision. If the"
},
{
"docid": "3069374",
"title": "",
"text": "979 F.Supp. at 1402. The court concluded that in any event, Hawkins could not establish prejudice under Strickland, in light of the other evidence before the jury. The precise issue before us is whether Hawkins’ counsel, by stipulating to the admission of hearsay evidence, properly waived his client’s constitutional confrontation rights. This issue was addressed in United States v. Stephens, 609 F.2d 230 (5th Cir.1980). In Stephens, the appellants had been charged along with five other individuals in a multi-count indictment, and the court ordered appellants’ trial to be severed from their codefend-ants. See id. at 231. At appellants’ bench trial, defense counsel stipulated to the admission of the transcript from the code-fendants’ trial in exchange for the government’s agreement to drop all but one of the substantive counts against the appellants. See id. at 231-32. Appellants argued that counsel’s stipulation effectively denied them their Sixth Amendment right of confrontation. See id. at 232. The Fifth Circuit rejected the argument and held that “counsel in a criminal case may waive his client’s Sixth Amendment right of confrontation by stipulating to the admission of evidence, so long as the defendant does not dissent from his attorney’s decision, and so long as it can be said that the attorney’s decision was a legitimate trial tactic or part of a prudent trial strategy.” Id. at 232-33. The Fifth Circuit’s holding in Stephens comports with decisions of the First and Ninth Circuits. See Cruzado v. People of Puerto Rico, 210 F.2d 789, 791 (1st Cir.1954) (“[Wjhere an accused is represented by counsel, we do not see why counsel, in his presence and on his behalf, may not make an effective waiver of [the right of confrontation].”); Wilson v. Gray, 345 F.2d 282, 286 (9th Cir.1965) (“[T]he accused may waive his right to cross examination and confrontation and ... the waiver of this right may be accomplished by the accused’s counsel as a matter of trial tactics or strategy.”). Here, there is no evidence that Hawkins disagreed with or objected to his counsel’s decision. Furthermore, we find that counsel’s decision to enter the stipulation was"
},
{
"docid": "2080407",
"title": "",
"text": "majority of circuit courts of appeals and hold that defense counsel may waive a defendant’s Sixth Amendment right to confrontation where the decision is one of trial tactics or strategy that might be considered sound. Turning to Plitman’s appeal, the facts clearly support Judge Preska’s conclusion that defendant’s waiver of Sixth Amendment rights through counsel was valid. Plitman achieved several tactical advantages as a result of his decision to allow the hearsay testimony of O’Keeffe. Those advantages included a quicker trial date, limitations on Belility’s testimony, and the opportunity to attack the accuracy of O’Keeffe’s notes and recollection of the hearsay conversation. Plitman’s challenges to the prudence of the tactical decision are unavailing. The transcript of the May 7, 1998, pretrial conference clearly demonstrates that the government did not anticipate the fast trial date and wanted to bring Belility to the United States as a live witness who could supply additional evidence incriminating Plitman. The same pretrial conference shows that defense counsel wanted a quick trial and stipulation in order to avoid Belility’s testimony. Plitman himself was present during this discussion and did not object to his lawyer’s decision. During the trial, defense counsel extensively attacked O’Keeffe’s recollection in cross examination and summation in order to lessen any impact from Belility’s statement. Plitman also introduced evidence that Belility spoke with an accent, making it difficult for O’Keeffe to understand him. Defense counsel argued that Belility’s absence from trial indicated his overall lack of credibility. All of these factors support our conclusion that Plit-man’s attorney made a prudent and sound decision when he entered the stipulation in which Plitman acquiesced. We hold that Plitman suffered no loss of his Sixth Amendment confrontation rights and that it was not plain error for the district court to have accepted the stipulation regarding admission of O’Keeffe’s hearsay testimony. II. Jury instructions Plitman next contends that the jury instructions were plainly erroneous because they did not adequately explain an element of tax evasion, that is, tax deficiency. Plit-man argues first that Judge Preska should have instructed the jury that FMP was a separate taxable entity"
},
{
"docid": "22075088",
"title": "",
"text": "by the government or the court, but by his own lawyer. We are thus called upon to determine whether defense counsel is empowered to waive defendant’s right to testify. Criminal defendants possess essentially two categories of constitutional rights: those which are waivable by defense counsel on the defendant’s behalf, and those which are considered “fundamental” and personal to defendant, waivable only by the defendant. Generally included in the former are matters which primarily involve trial strategy and tactics. See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). Examples of such matters are what evidence should be introduced, what stipulations should be made, what objections should be raised, and what pre-trial motions should be filed. See 1 Standards for Criminal Justice, Standard 4-5.2 comment (2d ed. 1980). Examples of fundamental decisions which only the defendant is empowered to waive are entry of a guilty plea, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), waiver of a jury trial, Adams v. United States ex rel. McCann, 317 U.S. 269, 277-78, 63 S.Ct. 236, 240-41, 87 L.Ed. 268 (1942), and whether to pursue an appeal, see Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963). In Rock, the Supreme Court did not need to decide whether the constitutional right to testify was fundamental in character, and therefore personal to the defendant, or whether it could be waived by the defense attorney. However, the- Court in Rock emphasized that the right to testify “is one of the rights that ‘are essential to due process of law in a fair adversary process,’ ” 483 U.S. at 51, 107 S.Ct. at 2708 (quoting Faretta, 422 U.S. at 819 n. 15, 95 S.Ct. at 2533 n. 15), and that it is “[e]ven more fundamental to a personal defense than the right of self-representation,” id. at 52, 107 S.Ct. at 2709. Moreover, the Court noted that it has “[o]n numerous occasions ... proceeded on the premise that the right to testify on one’s own behalf in defense to a criminal charge is"
}
] |
873500 | the convenience of a party, for the purposes of investigation, or simply to aid a party in a more thorough preparation of the case, are not recoverable. See U. S. v. Kolesar, 313 F.2d 835, 837-38 (5th Cir. 1963); Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316, 1323 (5th Cir. 1978). See generally, 6 Moore’s Federal Practice ¶ 54.77[4], The court’s determination as to whether depositions were necessarily obtained for use in a case depends upon a factual evaluation of the case by the district judge in terms of the case’s progress in his court. The district court has discretion in determining whether or not a deposition was necessarily taken within the meaning of the statute. REDACTED Carpa, Inc. v. Ward Foods, Inc., 567 F.2d at 1324. A deposition not used at the trial is still taxable in favor of the prevailing party if it appeared to be reasonably necessary to the parties in the light of a particular situation existing at the time it was taken. Electronics Specialty Co. v. International Controls Corp., 47 F.R.D. 158, 162 (S.D.N.Y.1969) (emphasis in original). As this court has previously noted “a deposition taken within the proper bounds of discovery .. . will normally be deemed to be ‘necessarily obtained for use in the case,’ and its costs will be taxed unless the opposing party interposes a specific objection that the deposition was improperly taken or unduly prolonged.” Jeffries | [
{
"docid": "8024424",
"title": "",
"text": "there is no indication that the district judge was in fact biased, the jury could have easily concluded that the judge favored plaintiff’s position. A new trial is necessary. Our disposition of the above issues renders unnecessary the consideration of defendant Staley’s contention that the damage award was excessive. Likewise, plaintiff Newman’s cross-appeal concerning taxing as costs the expenses of depositions is now moot. Nevertheless, because the latter issue may again arise on remand, we think it appropriate to refer the parties to the legal principles enunciated in United States v. Kolesar, 313 F.2d 835 (5th Cir. 1963). Our opinion in Kolesar clearly teaches that rigid rules play no role in determining whether the cost of a deposition is taxable. Rather, the district court must evaluate the facts of each case and determine “whether all or any part of a copy of any or all of the depositions was ‘necessarily obtained for use in the case.’ ” Id. at 840. In making this evaluation, a district judge has great latitude in determining whether a deposition was “necessarily obtained for use in the case” or was obtained merely for the convenience of the attorney. Accordingly, reversal on an issue involving taxation of costs will require an abuse of discretion. See also Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316 (5th Cir. 1978). REVERSED AND REMANDED. . The record contains the following bench conference: THE COURT: As to the rebuttal witness, Mr. Hill [plaintiff Newman’s attorney] says that Dr. Newman testified back nearly a year ago that food was short, it was very hard to find the amount of feed he needed to help him in his size operation and that he had to wait awhile to find food and the cattle suffered to some extent for that reason. If that is true, and Mr. Hill who is an officer of this court says it is, you prior to now could have found a witness in rebuttal on the subject if rebuttal was desired. In any event I— [Attorney for defendant Staley]: I don’t want to argue with the Court but"
}
] | [
{
"docid": "21071492",
"title": "",
"text": "compensable. Accordingly, the Court will limit the amount awarded for service of subpoenas to $45 each, the minimum amount charged by the U.S. Marshal’s service. Accordingly, Defendant is entitled to $245 in service of process costs. Deposition Costs Taxation of deposition costs is authorized by § 1920(2). “Though 1920(2) does not specifically mention a deposition, ... depositions are included by implication in the phrase ‘stenographic transcript.’ ” United States v. Kolesar, 313 F.2d 835, 837-38 (5th Cir.1963). “Whether deposition costs are taxable depends on the factual question of whether the deposition was ‘necessarily obtained for use in the case.’ ” W & O 213 F.3d at 620-21 (quoting Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 337 (5th Cir.1981)). The burden is on the party opposing taxation to demonstrate that the depositions were “not ‘related to an issue which was present in the case at the time the deposition was taken.’ ” Id. at 621 (quoting Independence Tube Corp. v. Copperweld Corp., 543 F.Supp. 706, 718 (N.D.Ill.1982)); George R. Hall, Inc. v. Superior Trucking Co., 532 F.Supp. 985, 994 (N.D.Ga.1982) (“a deposition taken within the proper bounds of discovery ... will normally be deemed to be ‘necessarily obtained for use in the case’ and its costs will be taxed unless the opposing party interposes a specific objection that the deposition was improperly taken or unduly prolonged.”). While not dispositive, the deposition of a witness appearing on the losing party’s witness list is generally reasonable because “the listing of those witnesses indicates] both that the [party] might need the deposition transcript to cross-examine the witnesses ... and that ‘the information those people had on the subject matter of this suit was not so irrelevant or so unimportant that their depositions were outside the bound of discovery.’” W&O, 213 F.3d at 621. Nearly all of the depositions sought to be taxed by James and his Counsel are of witnesses who appear on the Defendants’ Rule 26(a)(1) initial disclosure list. Those individuals include: James, Jayne Hopkins, Ennist Peete, Elton Alternar, Andrew Cano, Juan Tambolini, and Greg Anderson. The only witness deposed by"
},
{
"docid": "23202198",
"title": "",
"text": "thirteen depositions. The trial judge has great discretion to tax the cost of a deposition if he finds that “all or any part [of the deposition] was ‘necessarily obtained for use in the ease.’ ” Carpa, Inc. v. Ward Foods, 567 F.2d 1316, 1323 (5th Cir.1978), overruled on other grounds, Copper Liquor v. Adolph Coors Co., 701 F.2d 542, 543 (5th Cir.1983); United States v. Kolesar, 313 F.2d 835, 840 (5th Cir.1963). Judge O’Conor determined that each of the depositions, whether actually admitted at trial or not, was necessarily obtained for use in this case. Even the depositions of witnesses testifying for Nissho were used by counsel to structure their questioning of the witnesses. See Memorandum and Order, supra, at 6. We hold that the use of a deposition to structure questioning comes within the Kolesar rule. Judge O’Conor did not abuse his discretion in taxing these costs. SUMMARY Although the legal issues are myriad and difficult in this case, our end result can be stated in a few lines. We affirm the judgment that Occidental breached its contract with Nissho; but we remand for a limited retrial of contract damages. We reverse the fraud judgment and the award of punitive damages; but Nissho may prove on remand that it suffered injuries to its good will, reputation, and business relationships as a result of the contract breach. Occidental, in turn, may offer evidence concerning the reasonableness of the Nereus settlement and the effect of the contractual limitation on indirect and consequential damages. Occidental may also prove that the parties agreed to suspend the contract or to terminate pursuant to sections 10.1 and 10.3. Finally, we affirm the assessment of costs. The case is remanded for further proceedings in accordance with this opinion. AFFIRMED IN PART. REVERSED IN PART. REVERSED AND REMANDED IN PART. . Nissho did not lift any oil in January, March, June, July, August, October or December, 1974, nor in January, March, April, June or August, 1975. It purchased less than the required amounts in April, 1974 and July, 1975. . Occidental argues that the regulation did not"
},
{
"docid": "23326807",
"title": "",
"text": "convenience” of the parties but were “necessarily obtained for use in this case.” Brumely Estate v. Iowa Beef Processors, Inc., 704 F.2d 1362, 1363 (5th Cir.1983); In re Nissan Antitrust Litigation, 577 F.2d 910, 918 (5th Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979). A finding of necessity is a factual finding. United States v. Kolesar, 313 F.2d 835, 839 (5th Cir.1963). The trial judge made no such finding here and this element of costs must be remanded for such a determination. Kodak’s claim for the certification of documents from the Patent and Trademark Office is made pursuant to 28 U.S.C. § 1920(4) which covers “[f]ees for exemplification and copies of papers necessarily obtained for use in the case.” By its language, the statute calls for a finding similar to that required for daily transcripts. This item of cost must also be vacated and remanded for such a factual finding. Likewise, the amount claimed for travel .expenses, fees of the court reporter and interpreter and the claim for pretrial transcripts fall into the same category. They are taxable as costs only if “necessarily obtained for use in the case.” Kolesar, 313 F.2d at 838-39. Depositions. SGK also contests an award of $18,936.84 for depositions. Under this court’s precedents, the cost of original depositions is taxable without any factual finding. Id. at 837. Kodak’s bill of costs, however, does not separate the cost of the original deposition from thé cost of copies, and the cost of copies is taxable only if the copies were necessarily obtained for use in the case. Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316, 1323 (5th Cir.1978), rev’d on other grounds, Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542 (5th Cir.1983) (en banc). On remand, this breakdown must be supplied by Kodak and the trial court must make a finding on the necessity of the copies. The cost of the originals is to be taxed against SGK without a finding of necessity. Special Master. SGK’s final objection is to the court’s order forcing it to pay Kodak’s share"
},
{
"docid": "95818",
"title": "",
"text": "167.20 Elia Martinez 299.40 Drs. Paul Branca and John Franklin 873.00 Michael Middleton 291.10 Lloyd Henderson 143.50 Treadwell Phillips 147.60 Dorothy Stuck 465.45 Carol Atha 148.85 Total Depositions $11,000.90 UNSWORN INTERVIEWS Maureen R. McLain $ 64.60 Dr. Femardo Guerra 92.20 Dr. W. M. Keidel 89.40 Jeanne Janes 85.30 Anita Anderson 108.30 Roger Gonzales 78.40 Dr. Frank Bryant 132.70 Dr. Jose San Martin 60.00 Marta Tijerina 106.60 Maria Elena Torralva 78.40 Dr. Richard Aubry 127.50 Dr. George Ryan 196.50 Dr. Sheldon Karones 168.95 Dr. Warren Pearse 87.14 Total Interviews $1,475.99 The Court is of the opinion that the aforementioned copies of oral depositions were “necessarily obtained for use in the case”, Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316 (5th Cir. 1978), in accordance with the reasoning of the Fifth Circuit in United States v. Kolesar, 313 F.2d 835, 849 (5th Cir. 1963). The unsworn interviews, on the other hand, were taken merely for discovery purposes and were conducted solely for the convenience of counsel. Consequently, the interview costs are not taxable. See Morris v. Carnathan, 63 F.R.D. 374, 380-81 (N.D.Miss.1974). An additional item of non-taxable costs is the $646.40 deposition expense of James Miller and C. E. Anaya, and Dr. Courand Rothe, because they testified on behalf of Bexar County Hospital District at trial. See Morrison v. Alleluia Cushion Co., Inc., 73 F.R.D. 70, 72 (N.D.Miss.1976); Morris v. Carnathan, supra, 63 F.R.D. at 380. . See note 3 on page 393. 3. The amount of expert witness fees and expenses taxable under 28 U.S.C. § 1920(3) is governed exclusively by 28 U.S.C. § 1821. See, e. g., Jones v. Diamond, 594 F.2d 997, 1029 (5th Cir. 1979); Gerber v. Stoltenberg, 394 F.2d 179, 179 (5th Cir. 1968). Section 1821 authorizes payment of: a $30 per day fee to any witness in attendance at court or deposition; a per diem subsistence allowance for any witness who is required to stay overnight at the place of attendance; and a common carrier travel expense which has historically been limited to the area in which the court can issue subpoenas. See Goodwin Bros."
},
{
"docid": "14346174",
"title": "",
"text": "International Controls Corp., 47 F.R.D. 158,162 (S.D.N.Y.1969) (emphasis in original). The district court has discretion in determining whether the non-prevailing party has shown that a deposition was not necessarily taken within the meaning of the statute. Desisto College, 718 F.Supp. at 908. Moreover, “a deposition taken within the proper bounds of discovery will normally be deemed to be ‘necessarily obtained for use in the case’ and its costs will be taxed unless the opposing party interposes a specific objection that the deposition was improperly taken or unduly prolonged.” George R. Hall, Inc., 532 F.Supp. at 994, quoting Jeffries v. Georgia Residential Finance Authority, 90 F.R.D. 62 (N.D.Ga. 1981). In addition, since both parties should be aware of the reasons to take a deposition, this court holds that the non-prevailing party should explain why the court should not grant that cost. Desisto College, 718 F.Supp. at 908. According to plaintiff, defendant took Charles Garland and Dr. Feliciano’s depositions in order to investigate the damages aspect of the case, which was not an issue in the summary judgment motion. This court cannot find that the depositions were not necessarily obtained for use in the case, however. Defendant had to complete discovery before it filed for summary judgment, and therefore, defendant needed to prepare for the possibility of a trial. Defendant may have used the depositions as evidence had the case gone to trial. Certainly, had defendant prevailed at trial, these costs would have been taxable against plaintiff. To refuse costs where the plaintiff’s case was too weak to get to a jury would constitute an odd result. Accordingly, the court taxes to plaintiff the costs attributable to the court reporter’s charge for Charles Garland and Dr. Feliciano’s depositions. Plaintiff also contests the costs for depositions taken of witnesses whose depositions were noticed by plaintiff. The court assumes that these costs reflect only the cost of copies of the depositions, since presumably plaintiff would have paid the reporter's charge for the original transcript of the deposition. Copies of depositions taken by opposing parties represent taxable costs, if the depositions, themselves, were necessary. George"
},
{
"docid": "14721970",
"title": "",
"text": "Court is unconvinced that the depositions for which defendants seek reimbursement of costs, were obtained for “mere discovery” or for “convenience of counsel.” Given the challenge raised to defendants’ modus operandi by plaintiffs’ suit, proper and effective preparation in the case required the preparation in the form of depositions for which defendants seek recompense. In this connection see Advance Business Systems & Supply Co. v. S C M Corp., 287 F.Supp. 143, 165 (D.Md.1968), aff’d, 415 F.2d 55 (4th Cir.), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 101 (1970); United States v. Kolesar, 313 F.2d 835, 840 (5th Cir. 1963); and Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316, 1323 (5th Cir. 1978). It is further the Court’s view that recourse by counsel to an original on file with the Clerk’s Office would have been wholly insufficient. Trial preparation requires counsel to work with a deposition and not merely to view it. Thus the original and a copy of depositions taken by defendant and a copy of the depositions taken by plaintiff will be allowed as set forth in the bill of costs. Defendants summoned eleven witnesses. One of the eleven was called as a witness by plaintiffs. Seven were called by defendants. One was called instead by plaintiffs. Three were not called by either party. As to those three, defendants argue that it was reasonably anticipated that their testimony would be needed but that as events turned out their testimony was not required. One of the three, McCarney, had not been deposed. The other two, Coons and Catalupo, were deposed and their deposition shows that counsel’s decision to summon the witnesses was reasonably necessary. However, in the case of Coons airfare was computed from his residence in Los Angeles, California, when as a matter of fact he arrived in Richmond from London, England. The Court is not aware which of the fares is the lesser, but plaintiffs will be required to pay only the lesser of the two fares at coach rates. No costs will be allowed for McCarney. The travel and expenses of the"
},
{
"docid": "329127",
"title": "",
"text": "incoming government official should be able to choose his personal secretary and should not be prevented by the First Amendment from replacing his defeated opponent’s secretary and relative, at least when that person, as in this case, has unambiguously expressed her lack of confidence in the incoming official and her unwillingness to work in the new administration. See generally Stegmaier v. Trammell, 597 F.2d 1027 (5th Cir.1979) (discussing distinction between policymakers and confidential employees and holding that a public employee occupying a position of confidence, loyalty, and trust may — consistent with the Constitution — be discharged solely on the ground of political affiliations). Because we find that Soderstrum fits the definition of a confidential employee, we need not address whether she was correctly deemed a policymaker as well. Thus we conclude as did the district court that neither Chief Besson nor the Town of Grand Isle violated Ms. Soderstrum’s First Amendment rights. IV. The defendants appeal the district court’s denial of certain litigation costs. The standard of review for denial of costs is clear abuse of discretion. Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729 F.2d 1530 (5th Cir.1984) (quoting Kinnear-Weed Corp. v. Humble Oil & Refining, 441 F.2d 631, 637 (5th Cir.), cert. denied, 404 U.S. 941, 92 S.Ct. 285, 30 L.Ed.2d 255 (1971)). As to depositions, a trial judge has great discretion to tax such costs if “all or any part [of the deposition] was ‘necessarily obtained for use in the case.’ ” Carpa, Inc. v. Ward Foods, 567 F.2d 1316, 1323 (5th Cir.1978) (quoting 28 U.S.C.A. § 1920(4) (West 1966)), Carpa overruled on other grounds, Copper Liquor v. Adolph Coors Co., 701 F.2d 542, 543 (5th Cir.1983); see also Nissho-Iwai, 729 F.2d at 1553 (including above quote from Carpa); United States v. Kolesar, 313 F.2d 835, 840 (5th Cir.1963). In Nissho-Iwai the trial judge “determined that each of the depositions, whether actually admitted at trial or not, was necessarily obtained for use in the case.” 729 F.2d at 1553. We affirmed the decision to tax these costs and held that the trial court could, in its"
},
{
"docid": "14624784",
"title": "",
"text": "The depositions of expert witnesses will be considered under the same criteria as those applied to other witnesses. Nabanco objects to the taxation of the deposition costs for two groups of witnesses: 1) witnesses who were deposed but whose depositions were not read at trial because they testified live; and 2) witnesses who did not testify live at trial and whose depositions were not read or otherwise utilized at trial. Nabanco, relying on United States v. Kolesar, 313 F.2d 835 (5th Cir.1963), argues that a deposition is necessarily obtained for use in the case only if all or part of the deposition is actually introduced in evidence or used at trial for impeachment purposes. See Holmes v. Oxford Chemicals, Inc., 510 F.Supp. 915, 917 (M.D.Ala.1981), aff'd on other grounds, 672 F.2d 854 (11th Cir.1982). While the Court agrees that Kolesar approves the taxation of deposition costs in those two instances, the opinion also adopts a flexible concept of necessity which recognizes that the trial judge must determine the necessity of a deposition in the particular context of a specific case. 313 F.2d at 840. The cost' of a deposition not used at trial is taxable if the deposition appeared to be reasonably necessary in light of the particular situation existing at the time it was taken. George R. Hall, Inc. v. Superior Trucking Co., 532 F.Supp. 985, 994 (N.D.Ga.1982); Neely v. General Electric Co., 90 F.R.D. 627, 630 (N.D.Ga.1981). However, costs incurred for the convenience of a party, for the purposes of investigation, or simply to aid a party in a more thorough preparation of a case are not recoverable. United States v. Kolesar, 313 F.2d at 837-38. The burden is on the party seeking taxation of the deposition costs to show that the deposition was necessarily obtained. Neely v. General Electric Co., 90 F.R.D. at 630. Nabanco argues that VISA cannot succeed even under the more liberal standard because there has been no individualized showing that the taking of any of the depositions at issue was reasonably necessary in light of the facts known to counsel at the time"
},
{
"docid": "22928090",
"title": "",
"text": "services under section 1828 of this title. . 6 J. Moore, W. Taggart & J. Wicker, supra note 33, at 54.77[1]; 10 C. Wright & A. Miller, supra note 33, at § 2668. . Id. . 28 U.S.C. § 1920(2). . Allen v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir. 1982); 10 C. Wright and A. . Miller, supra note 33, at § 2676; 6 J. Moore, W. Taggart & J. Wicker, supra note 33, at ¶ 54.-77[4]. . United States v. Kolesar, 313 F.2d 835, 840 (5th Cir. 1963) (“The trial Judge must determine whether all or any part of a copy of any or all of the depositions was ‘necessarily obtained for use in the case.’ In that evaluation, great latitude and discretion must be accorded the Judge.”); Newman v. A. E. Staley Mfg. Co., 648 F.2d 330, 336-37 (5th Cir. 1981) (approving Kolesar in dictum); Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316, 1323 (5th Cir. 1978) (reversing and remanding for factual determination by district judge on necessity of copies). . See Jones v. Diamond, 636 F.2d at 1382. . Quy v. Air America, Inc., 667 F.2d 1059, 1066 (D.C.Cir.1981); State of Ill. v. Sangamo Const. Co., 657 F.2d 855, 865 n.14 (7th Cir. 1981) ; Kinnear-Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 637 (5th Cir. 1971). . Barry v. McLemore, 670 F.2d 30, 34 (5th Cir. 1982) . . Roberts v. S.S. Kyriakoula D. Lemos, 651 F.2d 201, 206 (3d Cir. 1981); Welsch v. Likins, 68 F.R.D. 589, 597 (D.Minn.), affd per curiam, 525 F.2d 987 (8th Cir. 1975). . Worley v. Massey-Ferguson, Inc., 79 F.R.D. 534, 541 (N.D.Miss.1978). See also Pizarro-de-Ramirez v. Grecomer Shipping Agency, 82 F.R.D. 327, 330 (D.P.R.1976); Bartell, Taxation of Costs and Awards of Expenses in Federal Court, ALI-ABA Course of Study Materials: Civil Practice and Litigation in Federal and State Courts 675, 703 (1982). . State v. Sangamo Const. Co., 657 F.2d 855, 866 (7th Cir. 1981); Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 224 (9th Cir.), cert. denied, 379"
},
{
"docid": "23202197",
"title": "",
"text": "courts to tax “[f]ees for exemplification and copies of papers necessarily obtained for use in the case.” This Circuit has held that the costs of copying exhibits and documents come within section 1920(4). See Scroggins v. Air Cargo, 534 F.2d 1124, 1133 (5th Cir.1976). The issue that we face is whether a court may tax the cost of enlarged copies. In this case, the parties had agreed to the use of enlarged copies. At the first trial, Defendant had certain documents enlarged for use in the presentation of its case. In response, Plaintiff had certain other documents enlarged for its use at the second trial. By agreement of the parties, the blow-ups were admitted into evidence and sent to the jury room at the second trial. Memorandum and Order, supra, at 7. We hold that where the parties agree to try a case on enlarged copies, the enlargements should be treated like any other copies for the purpose of taxing costs. Depositions The final category of costs challenged on this appeal includes the expense of thirteen depositions. The trial judge has great discretion to tax the cost of a deposition if he finds that “all or any part [of the deposition] was ‘necessarily obtained for use in the ease.’ ” Carpa, Inc. v. Ward Foods, 567 F.2d 1316, 1323 (5th Cir.1978), overruled on other grounds, Copper Liquor v. Adolph Coors Co., 701 F.2d 542, 543 (5th Cir.1983); United States v. Kolesar, 313 F.2d 835, 840 (5th Cir.1963). Judge O’Conor determined that each of the depositions, whether actually admitted at trial or not, was necessarily obtained for use in this case. Even the depositions of witnesses testifying for Nissho were used by counsel to structure their questioning of the witnesses. See Memorandum and Order, supra, at 6. We hold that the use of a deposition to structure questioning comes within the Kolesar rule. Judge O’Conor did not abuse his discretion in taxing these costs. SUMMARY Although the legal issues are myriad and difficult in this case, our end result can be stated in a few lines. We affirm the judgment that"
},
{
"docid": "14624785",
"title": "",
"text": "context of a specific case. 313 F.2d at 840. The cost' of a deposition not used at trial is taxable if the deposition appeared to be reasonably necessary in light of the particular situation existing at the time it was taken. George R. Hall, Inc. v. Superior Trucking Co., 532 F.Supp. 985, 994 (N.D.Ga.1982); Neely v. General Electric Co., 90 F.R.D. 627, 630 (N.D.Ga.1981). However, costs incurred for the convenience of a party, for the purposes of investigation, or simply to aid a party in a more thorough preparation of a case are not recoverable. United States v. Kolesar, 313 F.2d at 837-38. The burden is on the party seeking taxation of the deposition costs to show that the deposition was necessarily obtained. Neely v. General Electric Co., 90 F.R.D. at 630. Nabanco argues that VISA cannot succeed even under the more liberal standard because there has been no individualized showing that the taking of any of the depositions at issue was reasonably necessary in light of the facts known to counsel at the time it was taken. VISA argues that the deposition of all the witnesses designated by Nabanco, including in the pretrial stipulation, was reasonably necessary since VISA anticipated using those depositions at trial. VISA also argues that several depositions were made necessary by the testimony of John Bull concerning the claimed damages to Nabanco from the alleged antitrust violation in which he mentioned several merchants. According to VISA, the depositions of the merchants were necessary to monitor Bull’s testimony and to cross examine Bull in relation to testimony about the merchants. I will grant the defendants claim for these costs, in part. The serious nature of this case with the exposures inherent in an unsuccessful defense, suggest that most of the depositions taken were important to the defense. No costs have been permitted for unspecified depositions. Expert Witness Fees VISA seeks to recover the fees of its expert witnesses as costs. The Court declines to allow the expert witness fees as costs and will allow only the statutory per diem and attendance costs for such witnesses. The"
},
{
"docid": "14346173",
"title": "",
"text": "because the depositions concerned the damages aspect of the case, which the court never addressed. Plaintiff also objects to defendant receiving costs for the depositions of Ola Quinn, Harrison Anderson, Reginald Coffin, Alex Compton, and Bishop Thompson, because they were taken by plaintiff only for discovery purposes. The court will deal first with costs for the two depositions taken by defendant: Dr. Feliciano and Dr. Garland. The cost of taking a deposition is taxable under Rule 54(d) only if the deposition was “necessarily obtained for use in the case.” 28 U.S.C. § 1920(2). A court’s determination as to whether a deposition was necessarily obtained “depends upon a factual evaluation by the district court in terms of the case’s progress.” George R. Hall, Inc. v. Superior Trucking Co., 532 F.Supp. 985, 994 (N.D.Ga.1982) (Hall, J.). The court must decide if the deposition appeared to be reasonably necessary to the parties in light of the particular situation existing at the time it was taken. George R. Hall, Inc., 532 F.Supp. at 994, citing, Electronics Specialty Co. v. International Controls Corp., 47 F.R.D. 158,162 (S.D.N.Y.1969) (emphasis in original). The district court has discretion in determining whether the non-prevailing party has shown that a deposition was not necessarily taken within the meaning of the statute. Desisto College, 718 F.Supp. at 908. Moreover, “a deposition taken within the proper bounds of discovery will normally be deemed to be ‘necessarily obtained for use in the case’ and its costs will be taxed unless the opposing party interposes a specific objection that the deposition was improperly taken or unduly prolonged.” George R. Hall, Inc., 532 F.Supp. at 994, quoting Jeffries v. Georgia Residential Finance Authority, 90 F.R.D. 62 (N.D.Ga. 1981). In addition, since both parties should be aware of the reasons to take a deposition, this court holds that the non-prevailing party should explain why the court should not grant that cost. Desisto College, 718 F.Supp. at 908. According to plaintiff, defendant took Charles Garland and Dr. Feliciano’s depositions in order to investigate the damages aspect of the case, which was not an issue in the summary"
},
{
"docid": "14721969",
"title": "",
"text": "pretrial conferences saved the parties two to three weeks of extra trial time. Of more pertinence is the fact that throughout the pretrial conferences the parties made concessions to one another, reached agreements and stipula tions with one another, identified, withdrew, proffered and altered exhibits to meet objections from one another, while the Court ruled on motions, objections, and proposals of the parties all to the end that the litigation be shaped fairly' to present the questions properly presentable to the jury. There is no question that the transcript of the pretrial proceedings was reasonably necessary for an effective and proper presentation of the case. Both parties, represented by experienced lawyers, engaged in extensive discovery and in the final wave of discovery took the depositions of knowledgeable witnesses. Some of these depositions were designated for use in trial and were used, others were designated for use and were considered by the Court but were not actually referred to at trial, and still others were neither designated nor used. Having reviewed plaintiffs’ briefs with care, the Court is unconvinced that the depositions for which defendants seek reimbursement of costs, were obtained for “mere discovery” or for “convenience of counsel.” Given the challenge raised to defendants’ modus operandi by plaintiffs’ suit, proper and effective preparation in the case required the preparation in the form of depositions for which defendants seek recompense. In this connection see Advance Business Systems & Supply Co. v. S C M Corp., 287 F.Supp. 143, 165 (D.Md.1968), aff’d, 415 F.2d 55 (4th Cir.), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 101 (1970); United States v. Kolesar, 313 F.2d 835, 840 (5th Cir. 1963); and Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316, 1323 (5th Cir. 1978). It is further the Court’s view that recourse by counsel to an original on file with the Clerk’s Office would have been wholly insufficient. Trial preparation requires counsel to work with a deposition and not merely to view it. Thus the original and a copy of depositions taken by defendant and a copy of the depositions taken by"
},
{
"docid": "23326808",
"title": "",
"text": "fall into the same category. They are taxable as costs only if “necessarily obtained for use in the case.” Kolesar, 313 F.2d at 838-39. Depositions. SGK also contests an award of $18,936.84 for depositions. Under this court’s precedents, the cost of original depositions is taxable without any factual finding. Id. at 837. Kodak’s bill of costs, however, does not separate the cost of the original deposition from thé cost of copies, and the cost of copies is taxable only if the copies were necessarily obtained for use in the case. Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316, 1323 (5th Cir.1978), rev’d on other grounds, Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542 (5th Cir.1983) (en banc). On remand, this breakdown must be supplied by Kodak and the trial court must make a finding on the necessity of the copies. The cost of the originals is to be taxed against SGK without a finding of necessity. Special Master. SGK’s final objection is to the court’s order forcing it to pay Kodak’s share of the cost of the special master. Carpa clearly decides this issue. The taxing of the cost of a special master against a nonprevailing party is clearly within a district court’s discretion and no factual showing of necessity is required. Carpa, 567 F.2d at 1324. This award is affirmed. Interest on Costs SGK also appeals from the district court’s post-judgment award of interest on costs. SGK argues that the district court lacked jurisdiction to make the award because it occurred after notice of appeal, and that the law of the Fifth Circuit precludes the award of interest on costs. After SGK filed its notice of appeal in this case, the district court, responding to a motion by Kodak, amended its award of costs to add $37,951.89 in interest. Kodak cited rule 10(e), Fed.R.App.P., as the basis for the amendment. That rule allows the correction or modification of a record after it is submitted to the appellate court. Rule 10(e) is not applicable to this situation. The notice of appeal deprived the district court of jurisdiction"
},
{
"docid": "22928089",
"title": "",
"text": "in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs[.]” Costs incurred on appeal are taxed against the losing party unless the court directs otherwise. Fed. R.App.P. 39(a). See generally Peck, Taxation of Costs in United States District Courts, 37 F.R.D. 481 (1965). . 6 J. Moore, W. Taggart, J. Wicker, Moore’s Federal Practice j[ 54.70[1] (2d ed. 1982); 10 C. Wright & A. Miller, Federal Practice and Procedure § 2666 (1973). . Id. . The statutory items are: (1) Fees of the clerk and marshal; (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title. (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title. . 6 J. Moore, W. Taggart & J. Wicker, supra note 33, at 54.77[1]; 10 C. Wright & A. Miller, supra note 33, at § 2668. . Id. . 28 U.S.C. § 1920(2). . Allen v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir. 1982); 10 C. Wright and A. . Miller, supra note 33, at § 2676; 6 J. Moore, W. Taggart & J. Wicker, supra note 33, at ¶ 54.-77[4]. . United States v. Kolesar, 313 F.2d 835, 840 (5th Cir. 1963) (“The trial Judge must determine whether all or any part of a copy of any or all of the depositions was ‘necessarily obtained for use in the case.’ In that evaluation, great latitude and discretion must be accorded the Judge.”); Newman v. A. E. Staley Mfg. Co., 648 F.2d 330, 336-37 (5th Cir. 1981) (approving Kolesar in dictum); Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316, 1323 (5th Cir. 1978) (reversing and remanding for factual determination by district judge on necessity"
},
{
"docid": "329128",
"title": "",
"text": "abuse of discretion. Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729 F.2d 1530 (5th Cir.1984) (quoting Kinnear-Weed Corp. v. Humble Oil & Refining, 441 F.2d 631, 637 (5th Cir.), cert. denied, 404 U.S. 941, 92 S.Ct. 285, 30 L.Ed.2d 255 (1971)). As to depositions, a trial judge has great discretion to tax such costs if “all or any part [of the deposition] was ‘necessarily obtained for use in the case.’ ” Carpa, Inc. v. Ward Foods, 567 F.2d 1316, 1323 (5th Cir.1978) (quoting 28 U.S.C.A. § 1920(4) (West 1966)), Carpa overruled on other grounds, Copper Liquor v. Adolph Coors Co., 701 F.2d 542, 543 (5th Cir.1983); see also Nissho-Iwai, 729 F.2d at 1553 (including above quote from Carpa); United States v. Kolesar, 313 F.2d 835, 840 (5th Cir.1963). In Nissho-Iwai the trial judge “determined that each of the depositions, whether actually admitted at trial or not, was necessarily obtained for use in the case.” 729 F.2d at 1553. We affirmed the decision to tax these costs and held that the trial court could, in its discretion, tax the costs of taking a deposition used only to structure questioning. Id. (citing the “Kolesar rule”). Thus, contrary to one of Besson’s arguments, we did not hold that depositions used for structuring questioning are always “necessary for use in the case.” Rather we held that it is within a trial court’s discretion to tax such costs. The district court denied roughly $1500 of $7,062.10 requested by defendants. The denied costs were for taking four depositions (those of Mr. Lafont, Mr. Marullo, Mr. Lee, and Mr. Ragsdale) and for obtaining two sworn statements (those of Ms. Encalade and Ms. Guidry). The court stated its reasons as follows: [Defendants seek recovery of costs for depositions of witnesses aligned with the defendants, whose depositions were noticed by the defendants. See Rec.Doc. no. 16 (Lafont and Marullo); Rec.Doc. no. 22 (Lee and Ragsdale); and Rec.Doc. no. 37 (Ragsdale). The Court finds such depositions were not necessary to the defense of this case and did not expedite the trial. Costs in connection with these depositions are denied. Also,"
},
{
"docid": "799960",
"title": "",
"text": "v. Georgia Residential Finance Authority, 90 F.R.D. 62 (N.D.Ga.1981)). A deposition need not be used at trial but must appear reasonably necessary at the time it is taken. Allen v. United States Steel Corp., 665 F.2d 689 (5th Cir.1982); O'Donnell v. Georgia Osteopathic Hospital, Inc., 99 F.R.D. 578, 581 (N.D.Ga.1983). However, deposition costs incurred merely for the convenience of a party or a party’s attorney, for purposes of investigation, or simply to aid a party in thorough preparation are not taxable. Expenses for copies of depositions taken by the prevailing party are not normally recoverable. Jamison v. Cooper, 111 F.R.D. 350, 351 (N.D.Ga.1986); George R. Hall, Inc., 532 F.Supp. at 995. However, when the party files the original transcript in its possession with the court at the opposing party’s request, rather than in support of its own motion or presentation of the case, charges for copies are taxable if the deposition is used extensively in preparation for and at trial. Id. Charges for a copy of a deposition taken by an opponent are recoverable. United States v. Kolesar, 313 F.2d 835; Jeffries, 90 F.R.D. at 64. Defendant argues that a number of depositions taken by plaintiff were merely fishing expeditions to discover defendant’s procedures and decision-making processes in handling insurance claims. Defendant contends that such information was irrelevant to plaintiffs bad faith claim. See Interstate Life and Accident Co. v. Williams, 220 Ga. 323, 138 S.E.2d 668 (1964) and Lett v. State Farm Fire & Cas. Co., 115 F.R.D. 501, 503-04 (N.D.Ga.1987), holding that bad faith claims turn on the facts of a particular dispute — not the general procedures followed by an insurer. Defendant has raised specific objections to charges for a number of depositions of persons who had no knowledge of the underlying dispute. Plaintiffs counter that these depositions were necessary to determine whether the persons in fact had such knowledge. The court agrees with defendant that plaintiff should have used interrogatories or other methods to determine who had relevant knowledge instead of unnecessarily compounding the expenses of litigation. Plaintiff has failed to counter defendant’s argument that these"
},
{
"docid": "23623216",
"title": "",
"text": "U.S.C. § 1920 reads as follows: A judge or clerk of any court of the United States may tax as costs the following: ... (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; ... (4) Fees for exemplification and copies of papers necessarily obtained for use in the case . United States v. Kolesar, 313 F.2d 835, 838-840 (5th Cir.1963); West Wind Africa Line, Ltd. v. Corpus Christi Marine Services Co., 834 F.2d 1232, 1237-38 (5th Cir.1988). . E.g., Todd Shipyards Corp. v. Turbine Service, Inc., 592 F.Supp. 380, 401 (E.D.La.1984); Morris v. Carnathan, 63 F.R.D. 374, 380-81 (N.D.Miss.1974). . West Wind Africa, 834 F.2d at 1237-38; Nissho-Iwai Co. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1553 (5th Cir.1984); Allen v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir.1982); Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087 (5th Cir.1982), reinstated in relevant part en banc 701 F.2d 542 (1983); Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316, 1323 (5th Cir.1978), overruled on other grounds, Copper Liquor, 701 F.2d at 542; Kolesar, 313 F.2d at 840. . Studiengesellschaft, 713 F.2d at 134; Carpa, 567 F.2d at 1323; Kolesar, 313 F.2d at 835; Christian v. Tackett, 86 F.R.D. 220, 222 (N.D.Miss.1979). . Allen, 665 F.2d at 697; Carpa, 567 F.2d at 1323; Kolesar, 313 F.2d at 835. . Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 337 (5th Cir.1981); In re Nissan Antitrust Litigation, 577 F.2d 910, 918 (5th Cir.1978), cert. denied 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979). . J.T. Gibbons, Inc. v. Crawford Fitting Co., 760 F.2d 613, 615-16 (5th Cir.1985), reinstated in relevant part en banc, 790 F.2d 1193 (1986), aff’d 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987); Studiengesellschaft, 713 F.2d at 133; Brumley Estate v. Iowa Beef Processors, Inc., 704 F.2d 1362, 1363 (5th Cir.1983); In re Nissan, 577 F.2d at 918. . Nissho-Iwai, 729 F.2d at 1553; Scroggins v. Air Cargo, Inc., 534 F.2d 1124, 1133 (5th Cir.1976). . American Key"
},
{
"docid": "799959",
"title": "",
"text": "by the losing party. B. Deposition Transcripts The bill of costs includes $25,465.65 for transcripts, plaintiff’s share of deposition costs, and copies of depositions. Defendant objects to the taxation of these costs on grounds that plaintiff seeks reimbursement for the cost of all depositions taken in the case, including depositions of plaintiff’s own witnesses and plaintiff’s counsel. However, plaintiff did not depose any of its own witnesses. Rather, plaintiff seeks reimbursement for copies of depositions of its own witnesses that were taken by defendant. Under § 1920, deposition expenses are properly taxed if the deposition was “necessarily obtained for use in the case.” See United States v. Kolesar, 313 F.2d 835 (5th Cir.1963). “[A] deposition taken within the proper bounds of discovery ... will normally be deemed to be ‘necessarily obtained for use in the case,’ and its cost will be taxed unless the opposing party interposes a specific objection that the deposition was improperly taken or unduly prolonged.” George R. Hall, Inc. v. Superior Trucking Co., Inc., 532 F.Supp. 985, 994 (N.D.Ga.1982) (quoting Jeffries v. Georgia Residential Finance Authority, 90 F.R.D. 62 (N.D.Ga.1981)). A deposition need not be used at trial but must appear reasonably necessary at the time it is taken. Allen v. United States Steel Corp., 665 F.2d 689 (5th Cir.1982); O'Donnell v. Georgia Osteopathic Hospital, Inc., 99 F.R.D. 578, 581 (N.D.Ga.1983). However, deposition costs incurred merely for the convenience of a party or a party’s attorney, for purposes of investigation, or simply to aid a party in thorough preparation are not taxable. Expenses for copies of depositions taken by the prevailing party are not normally recoverable. Jamison v. Cooper, 111 F.R.D. 350, 351 (N.D.Ga.1986); George R. Hall, Inc., 532 F.Supp. at 995. However, when the party files the original transcript in its possession with the court at the opposing party’s request, rather than in support of its own motion or presentation of the case, charges for copies are taxable if the deposition is used extensively in preparation for and at trial. Id. Charges for a copy of a deposition taken by an opponent are recoverable. United"
},
{
"docid": "799958",
"title": "",
"text": "fees and expenses on a monthly basis. The order also specifically provided, “[t]his court shall retain the authority to tax costs, including a reallocation of the fees and expenses of the special master.” Defendant admits that assessment of the master’s fees and expenses lies within the court’s discretion. Rule 53(a) states that compensation of a special master shall be fixed by the court and charged upon such of the parties as the court may direct. See Gary W. v. State of Louisiana, 601 F.2d 240 (5th Cir.1979) (court has discretion to tax losing party with full share of special master’s fee); Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316, 1323-24 (5th Cir.1978), rev’d on other grounds by Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542 (5th Cir.1983); Studiengesellschaft, 713 F.2d at 134. The court has determined that Fulton Federal is the prevailing party in this litigation. Absent a determination that Fulton Federal unnecessarily multiplied the proceedings, the court sees no reason to depart from the custom of having the master’s fees paid by the losing party. B. Deposition Transcripts The bill of costs includes $25,465.65 for transcripts, plaintiff’s share of deposition costs, and copies of depositions. Defendant objects to the taxation of these costs on grounds that plaintiff seeks reimbursement for the cost of all depositions taken in the case, including depositions of plaintiff’s own witnesses and plaintiff’s counsel. However, plaintiff did not depose any of its own witnesses. Rather, plaintiff seeks reimbursement for copies of depositions of its own witnesses that were taken by defendant. Under § 1920, deposition expenses are properly taxed if the deposition was “necessarily obtained for use in the case.” See United States v. Kolesar, 313 F.2d 835 (5th Cir.1963). “[A] deposition taken within the proper bounds of discovery ... will normally be deemed to be ‘necessarily obtained for use in the case,’ and its cost will be taxed unless the opposing party interposes a specific objection that the deposition was improperly taken or unduly prolonged.” George R. Hall, Inc. v. Superior Trucking Co., Inc., 532 F.Supp. 985, 994 (N.D.Ga.1982) (quoting Jeffries"
}
] |
30233 | patent. If so, when the complainant agreed not to disturb the Sherman Company so long as it made only brass clamps, he must be understood to have meant brass clamps covered by the patent. It not being pretended that the steel clamp made by the Sherman Company infringes the patent in any way, we think the making of it was no violation of the license. Although both the parties are citizens of New York, as the action was for the infringement of a patent, and was so tried and decided in the court below, this court has jurisdiction, notwithstanding that one of the defenses depends upon the construction of a contract of license. We do not think that the decision in REDACTED 357, applies. The jurisdiction of the Circuit Court was denied in that case because, the parties being citizens of the same state, the cause of action depended solely upon a contract of license. Inasmuch as the defendant has been defeated on the issues it contested, and escapes upon a defense not pleaded, the case will be reversed, with costs to the complainant in the court below, and no costs to either party in this court. | [
{
"docid": "22543081",
"title": "",
"text": "This decision was made before the act of 1836, but is indicative of the sound doctrine that contro\\mrsies arising out of contracts concerning patent-rights did not necessarily belong to the Federal courts. The next case in chronological order'was founded on the act of 1836, the language of which, r-s we have seen, was on this point preserved in the act of 1870, and is embodied in the Revised Statutes. It is the only authoritative construction of the statute on that point made by this court, except Littlefield v. Perry (21 Wall. 205), which is in accord with it, and we think it covers the case under consideration. We refer to Wilson v. Sanford (10 How. 99), and the opinion was delivered by Mr. Chief Justice Taney. The complainant was assignee of the Woodward planingmaehine patent, and had licensed the defendants to use one machine upon payment of $1,400, of which $250 was paid down, and notes payable in nine, twelve, eighteen, and twenty-four months given for the remainder. This license contained a provision that if either of the notes was not punctually paid at maturity, all the rights under the license ceased and reverted to “ Wilson, who became reinvested in the same manner as if the license had never been made.” Upon failure to pay the first two notes, Wilson brought his bill, charging that notwithstanding this, the defendants were using the machine, and thus infringing his patent. He prayed an injunction, an account, &c. The bill was dismissed in the court below, and on appeal to this court the appeal was dismissed because the amount in controversy did not exceed $2,000. If, however, it had been a case arising under the patent laws of the United States, no sum was necessary to give jurisdiction. The precise question, therefore, to be decided was whether the suit arose under-the patent laws of the United States; and the Chief Justice, after reciting the clause in ¡-he act of 1836 which gives the circuit courts jurisdiction in all such eases, proceeds to discuss that question in this manner: “ The peculiar privilege,”"
}
] | [
{
"docid": "4373392",
"title": "",
"text": "few days after the execution of this agreement, the defendants placed upon the market a cut-out machine, known as the “Model T”, designed by the defendant Altvatcr, president of the defendant company, for which he was granlod United States letters patent No. 1,-807,952 on June 2,1931, upon an application filed J anuary 25,1929. The plaintiffs in bringing this suit charged that the Model T infringed the Freeman patent; that, moreover, its sale was in violation of tho co-operation clause of the license agreement; and that tho defendánts had rebuilt machines which under that agreement they might only repair. The plaintiffs asked that the license agreement be specifically enforced, its violation enjoined, and the damages caused by its breach ascertained. The defendants denied that they had in any wa.y violated the terms of tho license. The suit was tried, and the court below, being of the opinion that the defendants’ Model T machine did not infringe the Freeman patent, that the license agreement did not prohibit the, defendants from marketing a noninfringing cutout machine, and that no machines had been rebuilt by the defendants in violation of the license, filed findings and a decree in their favor. The finding of the, lower court that the defendants had not rebuilt machines is, we think, justified by the evidence and should not be disturbed. It may be that the parties to the license agreement intended that the licensees should be prohibited from making or selling even any noninfringing cut-out machines, as the plaintiffs assert and as the defendants deny; but the court below thought that the written agreement failed adequately to express any such intention. In view of our conclusion upon the question of infringement, we find it unnecessary to review this issue. The important question in this ease is whether tho Model T machine infringes the Freeman patent. The validity of the patent is not in question, since the defendants, being licensees, are estopped to assert its invalidity; but their contention is that the claims of the patent, as limited by the prior art, do not cover their cut-out machine. They say"
},
{
"docid": "7398288",
"title": "",
"text": "or that the royalty of two cents per wheel had not been agreed upon. Rubsam said* that a later demand for royalties on wheels for Nash and Essex was made, and again Harper said that he would look into it. Consistent with Rubsam’s testimony is the fact that a license under patent No. 1,395,362 had •been granted by appellee to General Motors Corporation, to last during the life of the patent, at one and one-half cents per wheel and two cents per wheel respectively, depending upon the weight of the automobile. This license provided that appellee “shall grant to licensee any more favorable terms of royalty that may be extended to other persons during the life of this agreement.” In view of this contract with General Motors Corporation it may reasonably be doubted that appellee would give free use of these clearance patents to appellant because of the royalties paid on the bulge and clamp patents. Appellant’s theory of free license is seriously ¡discounted by the admitted fact that it tried to secure a license contract for these patents at one cent per wheel, which was a special royalty to be used only in making wheels for the Ford Motor Company. The remaining question is whether substantial evidence was presented that appellant’s wheels incorporated the disclosures of appellee’s patents. Rubsam positively states that Harper, when taxed with using the clearance type construction admitted such use. In the correspondence which followed this conversation, Harper did not deny the use of the patents, and he specifically said in the letter of September 28, 1928, that he would have Carlton check into the royalties. A comparison of the pat ents with appellant’s wheels and felloes substantiates the finding of use. In the specifications of clearance patent No. 1,576,225, it is stated that the outer periphery of the fixed rim is substantially the same diameter as the contiguous portion of the inner periphery of the demountable rim. The patent also states: “When the demountable rim, in being placed on the wheel body, has been swung into substantial alignment therewith, the three fixed supports 16,"
},
{
"docid": "23418068",
"title": "",
"text": "confronting the railroad tie-iron art. As to Count 2, admitting for the purpose of this disposition, that defendant Steel Company is bound by the contract, agreeing “to observe and respect” the patent and not infringe it, defendant still has a right to show that it has not broken that contract, by demonstrating that nothing it has done constitutes infringement and that what it has produced is not that, or the ■equivalent of that which it has recognized as valid. We think the correct principles here are those controlling where a patentee has licensed another to make the patented device, concerning which, in Sinko Tool & Mfg. Co. v. Casco Products Corporation, 7 Cir., 89 F.2d 916, 917, we said that “the license raises no estoppel against the licensee in respect to the noninclusive type ■of his product. * * * It does not estop him in any way from making devices which are not within the class licensed, for as to such products the licensee takes nothing by the license, no immunity from suit and assumes no obligation respecting same.” International Burr Corp. v. Wood Grinding Service, 2 Cir., 34 F.2d 905. Inasmuch as défendant’s device did not infringe, there is no breach of contract. Defendant never agreed to refrain from manufacturing noninfringing devices. Count 3, in Paragraphs 14 (a), (b), (c) and (d), charges defendant with unfair competition. An essential premise for the liability sought to be enforced in this count is plaintiff’s averment that defendant has offered for sale and sold a type of iron of the same general outline as plaintiff’s and “an unquestionable infringement of plaintiff’s patent” and, in doing' so, has, in various manners, been guilty of unfair competition. If this essential averment, upon which all other parts of the pleading rest in order to bring about liability, were eliminated, nothing would remain stating in any wise any cause of action against defendant. The court had tried the question of infringement and the trial had resulted in a finding that defendant did not infringe. The device which defendant sold was, as the court found and"
},
{
"docid": "21344737",
"title": "",
"text": "relief on that ground presented a case arising under the patent laws, of which the District Court should have taken jurisdiction; but that the other portions of the bill, stating causes of action in tort and for breach of contract, did not arise under the patent laws, and as to them the federal court had no jurisdiction. The language of the court upon the subject of jurisdiction is peculiarly applicable to the present case: “It hardly needs statement that the jurisdiction as limited and fixed by Congress cannot be enlarged or extended by uniting in a single suit causes of action of which the court is without jurisdiction with one of which it has jurisdiction. Upon this point the rule otherwise prevailing respecting the joinder of causes of action in suits in equity must, of course, yield to the jurisdictional statute.” To the same effect see Hurn v. Oursler, 53 S. Ct. 586, 77 L. Ed. - (decided April 17, 1933); Vose v. Roebuck Weather Strip & Wire Screen Co., 210 F. 687 (D. C. N. Y.); General Baking Co. v. Shults Bread Co., 288 F. 954 (D. C. N. Y.). We conclude that the District Court erred in retaining jurisdiction of the cause of action for breach of contract and accounting under the license agreement. II. Since, under the authorities cited, .the court below had jurisdiction of the patent infringement aspect of the case, we turn now to a consideration of the patents. All cover automobile wheel structures of the demountable rim type. Prior to Rubsam it had long been common practice to mount the rim upon the wheel by first passing the inwardly-extending valve stem of the pneumatic tire, carried on the rim, through á hole which was provided in the felly for that purpose, tilting the inner side of the rim, next to the vehicle, upon the inner flange of a metal felly band, and swinging the tire so pivoted transversely of the wheel and into vertical position. Clamps were then adjusted to hold the rim and tire securely to the felly. It was also well known"
},
{
"docid": "22543099",
"title": "",
"text": "the failure to perform the conditions of it. Mr. Justice McLean said: “ It is suggested that, as the whole controversy in the case arises under the contract of license, the parties to which being citizens of this State, the Federal court cannot take jurisdiction. This objection would be unanswerable, if no right were involved in the controversy except what arises out of the contract, as, for instance, the Circuit Court co.uld take no jurisdiction under the contract of an action, merely to recover the sums agreed to be paid by the defendant; but in the present aspect of the case, it is not lim-' ited to the contract. The complainants set up their right under the patent, and allege tliat the defendant is infringing that .right; that the license affords no justification whatever to the defendant. The right then of the complainants to an injunction is not founded by them on the contract, but on the assignment of the patent. If the object of the bill were merely to enforce the specific execution of the contract, the Circuit Court of the United States could exercise no jurisdiction in the case.” See also Curtis, Patents, sect. 496, to the same purpose, citing this opinion. ' It seems to me, with all due submission, that if we are to have regard to “the better reason,” we shall find it expressed in these remarks of Mr. Justice McLean. It may be laid down, I think, as a general principle, that where a case necessarily involves a question arising under the Constitution or laws of the United States, and cannot be decided without deciding that question, it is a case arising under said Constitution and laws, and may be brought, as the law now stands, in the Circuit Court of the United States, although other questions may likewise be involved which might be tried and decided in the State courts. I do not believe in the doctrine that the presence of a question of municipal law in a case which necessarily involves Federal questions can deprive the Federal courts of their jurisdiction. ."
},
{
"docid": "4286003",
"title": "",
"text": "In this agreement, specified royalties were payable by appellee to appellants, commencing with the determination of an infringement by appellee; and it was provided that if any disputes arose as to whether such infringement existed, the matter would be submitted to arbitration. It was further provided that in the event that defendant-appellee made a transformer for use in any structure covered by any of appellants’ patents, but did not complete the construction of the power unit — leaving such construction up to a purchaser or other party, then appellee would pay a royalty on such transformer in accordance with the selling price of the complete power unit, as provided in the contract. In brief, it can be said that appellee agreed to pay stated royalties on the manufacture, use, or sale of certain transformers, systems, or apparatus contingent upon it being subsequently found that such transformers, systems, or apparatus embodied patents owned by appellants. Both parties understood the contract in the same way and bound themselves to carry out its provisions. It was a valid contract. Appellants contend that appellee never canceled the license and royalty agreement; but on May 1, 1945, appellee wrote appellants complaining that licenses had been granted to third persons without certain safeguarding provisions, contrary to the agreement between the parties, and that, in view of such action, “we hereby give notice to you of our cancellation of the Agreement,” in accordance with the provisions of the contract which gave either party the right to cancel for breach of any of its covenants on sixty days’ notice. The evidence discloses that the contract was effectively canceled. Prior to the execution of the contract, appellee company, which had manufactured transformers for approximately forty years, was concerned over the possibility that appellant, a patent holding company, might issue similar licenses to others who might be price-cutters, and, accordingly, in order to protect its interests as a manufacturer, appellee insisted upon the insertion of a price-fixing clause, which was required to be embodied in any future licenses that might be granted to others by appellants. But such a price-fixing"
},
{
"docid": "16085372",
"title": "",
"text": "knowledge of the complainants, in the sale of raffles which were not claimed by them, until about the time of the commencement of this suit, to be in violation of said patent, and that this action is brought upon a stale claim, and one which is unfounded in equity. (1.) The first question in this case is — are the defendants estopped, by their covenants in the agreement, from denying the validity of the complainants’ patent? The defendants contend, that the suit is against them simply as infringers, for a violation of the complainants’ patent rights, and that the covenant which is claimed to be an estoppel, being contained in an instrument collateral to the patent, cannot operate as an estoppel in a suit which is not founded upon the agreement but upon the patent, and that no bill in equity can be sustained upon the agreement, inasmuch as for a breach of that contract the complainants have a full and adequate remedy at law. The contract is not merely an agreement for a license, but is an executed license. Such was the intention of the parties, as it is to be collected from the whole of the instrument. Buell v. Cook, 4 Conn. 242. By the agreement. the defendants were licensed to manufacture and sell the double ruffle only. If they manufactured and sold any other ruffle which was protected by either of the patents, they became, as to such ruffle so improperly manufactured, infringers, and the complainants could resort to an action at law or in equity, to obtain redress for this violation of their exclusive patent rights. If the licensee “uses the patented invention beyond the limits of the license or grant, or in a way not authorized by the acense or grant, then there has been a violation of a right secured to the patentee under a law of the United States giving to him the exclusive right to use the thing patented, although such licensee performs, according to their terms, all the covenants entered into by him.” Goodyear v. Union India Rubber Co. [Case No."
},
{
"docid": "23425346",
"title": "",
"text": "necessarily appears in the plaintiffs statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose.’ ” Id. (citing Vink, 839 F.2d at 676-77 (quoting Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983))). Pixton argues that our holding in Air Products & Chemicals, Inc. v. Reichhold Chemicals, Inc., 755 F.2d 1559, 225 USPQ 121 (Fed.Cir.1985), is controlling. Air Products and Chemicals, Inc. owned U.S. Patent No. 3,708,388 and granted a non-exclusive license to E.I. du- Pont de Nemours and Company. DuPont then assigned its rights to Reichhold Chemicals. Reichhold licensed its rights under the patent to a third party. Air Products alleged that the latter license was not in conformance with the original license grant, terminated Reichhold’s license, and filed suit for patent infringement. Concluding that the primary issue was a matter of contract interpretation, and not patent infringement, the district court dismissed the case for lack of subject matter jurisdiction. On appeal, we reviewed the Supreme Court’s analysis of the issue in Luckett v. Delpark, Inc., 270 U.S. 496, 46 S.Ct. 397, 70 L.Ed. 703 (1926), to hold that Air Products’ cause of action arises under the patent laws. “[A] federal district court has jurisdiction of a suit by a patentee for an injunction against infringement and for profits and damages, even though, in anticipation of a defense of license or authority to use the patent, the complainant includes in his bill averments intended to defeat such a defense.” Id. at 1562, 755 F.2d 1559, 225 USPQ at 122-23 (citing Luckett v. Delpark, Inc., 270 U.S. 496, 46 S.Ct. 397, 70 L.Ed. 703). And “ ‘the party who brings suit is master to decide what law he will rely upon’ ... [and] that ‘[jjurisdiction generally depends upon the case made and the relief demanded by the plaintiff.’ ” Id., 755 F.2d 1559, 225 USPQ at 123 (internal citations omitted). B & B responds that Beghin-Say Int'l"
},
{
"docid": "17306287",
"title": "",
"text": "the legal effect of the action of the two parties was a rescission of the contract, a termination of the contractual relations between them, and a restoration to Crowe of -the rights under his patents theretofore licensed to the foundry company. Of the same opinion was the District Court, and in the reasoning and conclusion of the learned judge we concur, but we think that instead of adjudging that the contract “be and the same is hereby rescinded and annulled as and of this 21st day of May, 1914” (the date of the decree), the District Court should have adjudged that the contract had been rescinded by the complainant availing himself of the defendant’s breach when and at the time he communicated his election to the defendant. In other words, we are of opinion that the contract was rescinded by the acts of the parties and not by the decree of the District Court, and that it was rescinded on November 2, 1912, and not on May 21, 1914. The difference is material because of the difference in dates. It may be gathered fro'm the evidence that since November 2, 1912, the foundry company has manufactured stokers of the type contemplated by the rescinded contract of license. If this be true, the foundry company did not manufacture and sell them under the contract of license, for upon that date the contract was annulled, the license ceased to exist, and the patent rights thereunder were restored to Crowe. Whether stokers of the type embraced within the patents have since been manufactured by the foundry company is a proper matter of inquiry upon a suit for infringement of Crowe’s patents. That question was indirectly brought into this case as a matter of defense, but it is a question that can be properly adjudicated only in an action instituted by one party against the other, not under the contract, nor on a motion to commit for contempt of the court’s injunction, but in a suit for infringement of patents. We think the District Court erred in granting an injunction against the foundry company,"
},
{
"docid": "22589086",
"title": "",
"text": "for prior infringement damages. Such proof would not affect the fact that such a royalty added to the cost of producing unpatented board. Proof was offered that covenants against transfer of licenses, for price maintenance and for equality of license terms, and bulletin orders against rebates by selling other products at a cheaper price when patented articles were sold, were to protect the licensor’s monopoly under its letters patent. It was offered to prove that the activities of the Board Survey Company, considered in our former opinion, 333 U. S. 364, 400, were to secure compliance with the licenses; that there was no agreement to eliminate jobbers but only a purpose to maintain patent prices by discontinuing the jobber’s discount. Such proof, in view of our holding as to the Sherman Act, would not make legal concerted action under patents to stabilize prices. We pass over other offers of proof as clearly immaterial on the issue of liability for Sherman Act violation. Good intentions, proceeding under plans designed solely for the purpose of exploiting patents, are no defense against a charge of violation by admitted concerted action to fix prices for a producer’s products, whether or not those products are validly patented devices. We do not think that, accepting the offers of fact as true, there is enough in the proffered evidence to change the actions of the defendants from the illegal to the permissible. A finding that the manufacturers did not violate the Sherman Act under the evidence introduced by the Government and that proffered by the defendants below would be clearly erroneous in view of the concert of action to fix industry prices by the terms of the licenses. We agree with a statement made by counsel for the Government in argument below that as a “matter of formulating the decree” many facts offered to be proven would have effect upon the conclusion of a court as to the decree’s terms. However, we read the preliminary statement of the District Court to the decree and the summary decree itself as an adjudication of violation of the Sherman Act"
},
{
"docid": "21344738",
"title": "",
"text": "N. Y.); General Baking Co. v. Shults Bread Co., 288 F. 954 (D. C. N. Y.). We conclude that the District Court erred in retaining jurisdiction of the cause of action for breach of contract and accounting under the license agreement. II. Since, under the authorities cited, .the court below had jurisdiction of the patent infringement aspect of the case, we turn now to a consideration of the patents. All cover automobile wheel structures of the demountable rim type. Prior to Rubsam it had long been common practice to mount the rim upon the wheel by first passing the inwardly-extending valve stem of the pneumatic tire, carried on the rim, through á hole which was provided in the felly for that purpose, tilting the inner side of the rim, next to the vehicle, upon the inner flange of a metal felly band, and swinging the tire so pivoted transversely of the wheel and into vertical position. Clamps were then adjusted to hold the rim and tire securely to the felly. It was also well known that in performing this operation the rim should be centered, as nearly as could be done, upon the wheel, and that.if there was radial clearance and the clamps were not carefully and evenly tightened, there would be danger that the inner edge of the rim would slip upon the flange of the felly band, producing a detrimental angular misplacement or “cocking” of the tire. Various other paten-tees had conceived means for promoting the desired close-fitting concentricity of rim and wheel by the use of raised segmental or tapered bearing sm-faees on the outer edge of the rim (see, among others, patent to Lambert, No. 982,143; patent to Baker, No. 1,-095,953; patent to Baker, No. 1,123,065; patent to Harbridge, No. 1,165,096; patent to Wagenhorst, No. 1,231,314; patent to Jobski, No. 1,298,050; and patent to Man-ternach, No. 1,336,531); but in respect of all of these patents it is said, and we see no reason to doubt the statement, that because of the location of the raised bearing surfaces upon the rim, a certain amount of clearance between"
},
{
"docid": "22873856",
"title": "",
"text": "is powerless, so far as the courts of the United States are concerned, unless he can sue in his own name. A court of equity looks to the substance rather than form. When it has jurisdiction of parties it grants the appropriate relief without regard to whether they come as plaintiff or defendant. In this case the person who should have protected the plaintiff against all infringements has become himself the infringer.” White v. Rankin, 144 U. S. 628, was a bill by a patentee for infringement, to which there was answer setting up an agreement between the plaintiff and one of the defendants to assign to him an interest in the patent on certain conditions, which it was alleged were performed, and certain other matters which it was alleged gave the defendants the right to make; use and sell the patented invention. Thp case was tried upon a stipulation admitting that defendants had made and sold the patented inventions, and that a certain written agreement between-the plaintiff and one of the defendants had been made as above stated. The Circuit Court entered a decree dismissing the bill, which was reversed by this court. “ It ” (the court) “appears,” said Mr. Justice Blatchford, “to have dismissed the bill on the simple ground that the defendant set up a contract of license from White. The bill being- purely a bill for infringement, founded upon patents, what was set up by the defendants was set up as a defence and as showing the lawful right in them to do what they had done, and as a ground for the dismissal of the bill because they had not infringed the patents.” The decree was not one upon the facts of the case, but was simply a decree that the court had no jurisdiction to try the case. The subject-matter of the action, as set forth in the bill, gave the court jurisdiction, and exclusive jurisdiction, to try it. All of the parties to the suit were citizens of California, and if jurisdiction did not exist under the patent laws it did not"
},
{
"docid": "22952548",
"title": "",
"text": "102; 99 U. S. 552; 106 U. S. 619. Those words are equally applicable to the present case, except that, as it is an action at law, the principles of equity have no bearing. This action,-’ therefore, was within the jurisdiction, and, the parties being citizens of the same State, within the exclusive jurisdiction, of the State courts; and the only federal question in the case was rightly decided. Upon the merits of the case, it follows from what has been already said, that no question is presented, of which this court, upon this writ of error, has jurisdiction. Murdock v. Memphis, 20 Wall. 590. The grounds of the judgment below appear in the opinion of the Court of Appeals, to which, under the existing acts of Congress, this court is at liberty to refer. Philadelphia Fire Association v, New York, 119 U. S. 110; Kreiger v. Shelby County Railroad, ante, 43. Whether that court was right in its suggestion that it would have no jurisdiction to.determine the validity of the second reissue if incidentally drawn in question in an action upon an agreement between the parties, we need not consider; inasmuch as it expressly declined to pass upon any. such question, because it held that, in this action to recover royalties due' under the agreement, the defendant, while continuing to enjoy the privileges of the. license, was estopped to. deny the validity of the patent, or of any reissue thereof. The decision was based upon the contract between the parties;' and the'court did not decide, nor was it necessary for - the determination of the case that it should decide, any question depending on the construction or effect of the patent laws of the United States. Kinsman v. Parkhurst, 18 How. 289; Brown v. Atwell, 92 U. S. 327. Judgment affirmed."
},
{
"docid": "22873860",
"title": "",
"text": "the right of the defendant to use the patent. In other words, it would be an ordinary suit for infringement in which the Federal courts would alone have jurisdiction. Whether it sued at law or in equity, its damages would be such as are usual in cases of infringement, and the only injunction it could obtain would be against the further use of the .invention. In any suit that could be brought the title of the plaintiff to sue must be put in issue, and, that being the title to the patent, is put in issue in every suit for infringement. We held in Pratt v. Paris Light & Coke Co., 168 U. S. 255, with respect to an action in a state court, which involved the question whether the patents were void and an infringement upon prior patents, that this did not necessarily oust the state'court of its jurisdiction ; and by parity of reasoning we hold in this case that the mere fact that the suit may involve the existence of the license does not oust the court of jurisdiction of a suit for the infringement of a patent. While we do not intend to allow the jurisdiction of the Federal courts to be invoked primarily for the determination of the respective rights of parties to a contract concerning patents, yet when the bill is an ordinary one for an infringement and the answer puts in issue the title of the plaintiff to sue, we think the jurisdiction is not ousted by the mere allegation that the license has been revoked and that the court is at liberty to go on and determine that. fact. We regard this question as conclusively settled in Littlefield v. Perry, 21 Wall. 205, and White v. Rankin, 144 U. S. 628, and have no disposition to disturb it. The decree of the Circuit Court is, therefore, Reversed, and the case remanded for further proceedings consistent with this opinion. Me. Justice Geay did not sit in this case or participate in the decision. “1 License and Agreement. “ This agreement, made this 11th"
},
{
"docid": "21536145",
"title": "",
"text": "MOORMAN, Circuit Judge. The patent in suit is reissue patent No. 16,736, granted to McMillan. The original patent was granted May 26; 1925, and the application for the reissue was filed November 6, 1926, and granted September 13, 1927. Suit for infringement was filed by the patentee, doing business as M. & M. Wire Clamp Company, against the H. W. Roos Company, exclusive licensee under the Keffer patent, No. 1,590,033, issued June 22, 1926, on an application filed September 10, 1925, The defense was invalidity because of laches and intervening rights. Other defenses were also made, all of which were denied. We find it necessary to consider only the laches and intervening rights. Both the original and the reissue patents relate to a clampi for concrete column forms consisting of pairs of bars' pivotly connected at one end with longitudinally spaced slots extending through the bars, a slotted yoke or member attached to one of the bars and embracing both, and a wedge adapted to insert through the slots of the bars and yoke to effect a continuous take-up. The claims of the original patent were limited to slotted bars overlapping at the sides of the column form with wedges for moving them longitudinally between the corners, while the reissue claims call for any form of take-up by means of the use of wedges in slots and cover structures which would he free under the original elaims, such as the structure of the defendant. Prior to May 26, 1925, Keffer caused a single clamp to be made in Kansas City in conformity with the specifications and claims of his patent application. In June, 1926, he had five other elands made, which he induced some contractors, his friends, to “try out” in Chicago. The use of these clamps was experimental, certainly not commercial. On November 26, 3926, appellant secured an option from Keffer for three months to take out an exclusive license under his patent. This option was later extended for another month. On March 23, 1927, appellant entered into the exclusive license contract. One witness said that appellant had 400"
},
{
"docid": "2272540",
"title": "",
"text": "September 1988, a delay of eleven years. Since this delay exceeds six years, Miles was entitled to a presumption that the delay was both unreasonable and prejudicial to Miles. See Jamesbury Corp., 839 F.2d at 1552, 5 USPQ2d at 1785. As to Adelberg's argument that it was excused from suing because Cutter had a license under its patent, we do not necessarily agree with the district court that a reasonable belief that Cutter was licensed under the patent would not have been an adequate excuse for not suing. In the case before us, however, we do not accept, nor perhaps did the district court, that Adel-berg in fact decided, or had a reasonable basis for deciding, that Cutter was properly licensed and that, on that basis, it decided not to sue. The exclusive license between Adelberg and Abbott gave Abbott the right to use and sell clamps covered by Adelberg’s patent, but to manufacture only under certain circumstances not here applicable, i.e., as a back-up right in case Adelberg did not supply the clamps for which it was obligated under a supply provision. Thus, Adelberg could not reasonably have considered Cutter to be immunized from suit by being a sublicensee of Abbott, since Cutter was not buying clamps from Adelberg or Abbott and was itself making the allegedly infringing devices. As Abbott had no right to make clamps under its license, except for the irrelevant back-up right, it could not license Cutter to manufacture. Moreover, no royalties were paid to Adelberg on account of Cutter’s sales, as would have been required for a sublicense. Adelberg never saw a written copy of a sublicense, as a patentee would expect. These facts are therefore not consistent with Adelberg having a reasonable belief that Cutter was properly licensed under its patent. Further, Adelberg asserts that it never saw the Abbott-Cutter technology agreement. If that is correct, how could Adelberg be so certain that Cutter was properly subli-censed under its patent that it risked sanctions for bringing a patent infringement suit? The case law has established that delay can be excused when an accused"
},
{
"docid": "22873850",
"title": "",
"text": "respect to the licensee. There were practically but two ways in which the patentee could impair the grant he made to the licensee, and those were by a revocation of the license by a bill in equity, or by treating it as abandoned and revoked, and granting a license to another party. He elected the latter remedy, and made a contract with the Pacific Bridge Company to make and sell wooden pipe within the same territory. A suit in a state court would either be inadequate or would involve questions under the patent law. If the licensee sued at law he would-be obliged to establish the fact that the patent had been infringed, which the patentee might have denied, and in any case could only recover damages for past infringements. If he sued in equity, he could only pray an injunction against future infringements; but this is exactly •what he prays in this case, and thereby raises a question under the patent laws. In either case the patentee could defeat the action by showing that he did not infringe, — in either case the defendant could so frame his answer as to put in issue the title, the validity or the infringement of the patent. The natural and practically the only remedy, as it seems to us, was for the plaintiff to assert his title under the license and to prosecute the defendants as infringers. In doing this he does what every plaintiff is bound to do, namely, set forth his title either as patenteé, assignee or licensee, and thereby puts that title in issue. The defendant is at liberty in such a case to deny the title of the plaintiff by declaring that the license no longer exists, but in our opinion this does not make it a suit upon the license or contract, but it still remains a suit for the infringement of a patent, the only question being as to the validity of plaintiff’s title. There can be no doubt whatever that if the plaintiff sued some third person for an infringement of his patent, the defendant"
},
{
"docid": "21021186",
"title": "",
"text": "evidence, that the Cohen patents must be held so limited that appellant does not infringe. Cohen No. 1,944,923 is directed to details of a bracket construction whereby the lighter is affixed by a clamp to the running board of an automobile. It appears that the structure of lighter 13 is quite at variance with and apparently not within Cohen’s teachings. Exhibit 14 is said to infringe Cohen, No. 1,710,531. Appellant insists that it does not infringe. The device has a hollow tubular support of very stiff metal so cut as to form a bayonet slot so that an ordinary outlet plug may be inserted in the socket thus provided. An examination of the tube indicates that it is so stiff that slotting it does not provide the elastic springy arms which are the essential point of the Cohen patent. Again we find it doubtful whether there is infringement. Exhibit 15 is said to infringe three Cohen patents and the Copeland patent. Without prolonging discussion, the contention of appellant of noninfringement appeals to us upon the present record as both reasonable and plausible. The same is true of Exhibit 16. Appellant insists also that, when a patent license contract contains price limitations as here, no estoppel to deny invalidity is created; that price limitations in patent licenses are permitted only because, as the patent creates a monopoly, the'public is not entitled to that price competition which is insisted upon in subject matter free of patents; that, if the licen-sor and licensee seek to fix the price of products not covered by the patent, such action is void as violating the antitrust statutes; that, when they seek to fix prices under invalid patents, they are affixing prices on commodities as to which no monopoly exists and as to which, consequently, there can be no legal fixing of prices; that public policy demands free competition in unpatented articles. In view of our conclusions, it would seem wholly unnecessary to decide this issue at the present time and that to do so may never be necessary to a final determination of the issues involved."
},
{
"docid": "4024614",
"title": "",
"text": "method by which the glass is clamped. In the patent, the clamps operate on both sides of the ends of the glass, engaging its opposite surfaces. In the de fendant’s device, these clamps are brought hearer to the center of the shield member because they are held by perforations in the glass and do not need to reach over to the ends. The District Court dismissed the bill and the Circuit Court of Appeals affirmed this decree. We granted cer-tiorari upon the allegation of the petition, not denied by opposing counsel, that the sole question was whether one who makes and sells articles not covered by the claims of an original patent, but embraced by the enlarged claims of a subsequent valid reissue, applied for within seven months after the original was granted, has intervening rights such that he is not only immune from liability for what he has made and sold, but enjoys an irrevocable and permanent license to continue to make and sell without restriction. The extent of the operation of the estoppel creating intervening rights in such a case presents a question not free from difficulty. That a reissued patent enlarging claims of the original, although not specifically mentioned in § 4916, Rev. Stats., is authorized by that section, when the failure to claim the larger claims justified by the actual invention was due to inadvertence, accident or mistake, is settled by the decision of this Court in Topliff v. Topliff, 145 U. S. 156, and other cases. That case also recognizes that one who, pending the application and granting of the reissue, manufactures and sells articles which infringe the reissued patent may be protected on principles of estoppel from the literal application of § 4916, Rev. Stats., which makes the operation of the reissue relate to the date of the original patent. In Abercrombie & Fitch Co. v. Baldwin, 245 U. S. 198, a change, in the reissue, of the language of an original claim made it cover not only a bent pipe as shown, but a straight pipe as well, where the substance of the"
},
{
"docid": "21021168",
"title": "",
"text": "LINDLEY, District Judge. Upon reconsideration, the former opinions are withdrawn and this opinion is adopted as the final expression of the court. This is an appeal from a decree awarding a preliminary injunction against appellant in a suit upon five patents to Cohen, Nos, 1,710,348, 1,710,531, 1,944,923, 1,944,-922, 1,944,424, and one to Copeland, No. 1,919,159. Appellant relies upon a license agreement, entered into on February 17, 1934, whereby appellee licensed appellant under the foregoing patents to make cigar lighters to be sold as “attachments, replacements, or accessories” to automobiles. Appellee reserved exclusive right to sell lighters made under the patents to be sold as “standard equipment” on automobiles. Appellant admitted “the validity of said letters patent” and contracted, “for the purpose of the agreement,” that it would “take no steps or proceedings for the purpose of contesting the validity of said patents.” Cigar lighters sold as accessories are clamped on dashboards, and are known ordinarily as the “surface type.” Those sold for standard equipment usually pass through a hole in the dashboard and are known as the “well type.” Some of the latter, however, are sold for replacement and, in such case, are covered by the license. In so far as the inventions of patents are concerned, the “accessory” devices and those intended for “standard” equipment are precisely the same mechanism. The trial court found, first, that appellant had sold standard equipment lighters infringing the patents; second, that appellant had manufactured and sold infringing accessory lighters, which appellant contends are not within the patents; and that appellant should maintain prices thereon as provided in the agreement; and, third, that appellant should apply the patent numbers to certain surface type lighters sold as accessories, which appellant contends do not infringe and are no! within the license agreement. Appellant complains that the trial court erroneously concluded that it had no right to consider the prior art for any purpose; that it should have examined the same to determine the scope of the patents relied upon; that as to certain devices it should have considered the prior art for the purpose of determining"
}
] |
453299 | the Rule 11 agreement, amounts to “cruel and unusual punishment.” There has been no showing that the trial court failed to consider the pleas for leniency made by defendant’s counsel. Defendant received benefit of plea bargain and the sentence was permissible within the statute. Therefore, there is no basis for appellate review. See United States v. Barbara, 683 F.2d 164 (6th Cir.1982). D. Defendant raises two more issues on appeal. Both issues are essentially statutory arguments. Each is without merit. Defendant’s first argument, although couched in terms of “due process and equal protection,” is really an attack on the sufficiency of the evidence that might have been produced at trial. This argument has been clearly waived by defendant’s guilty plea. REDACTED Defendant’s second argument is that while he “possessed” the firearm in violation of 18 U.S.C. App. § 1202, he did not “receive” it within the meaning of § 922(h)(1) because the rifle was owned by his brother. This argument is simply wrong. It is well settled that the term receipt includes any knowing acceptance or possession of a firearm. United States v. Lipps, 659 F.2d 960, 962 (9th Cir.1981). Proof of possession is equivalent to proof of receipt for most purposes. United States v. Beverly, 750 F.2d 34, 36 (6th Cir.1984) {citing United States v. Craven, 478 F.2d 1329, 1336 (6th Cir.1973)). In summary, defendant’s arguments are all without merit with the exception of the first argument as we have | [
{
"docid": "9858692",
"title": "",
"text": "the facts which would make up the elements of the crime charged. After the inquiry, Judge Joiner stated that he found the plea to have been made voluntarily and intelligently, that it had a basis in fact, and that defendant Freed understood his rights and the consequences of his plea. Judge Joiner accepted the plea and found Freed guilty of the offenses charged, and on March 6, 1979, sentenced him to concurrent one-year terms of imprisonment with release on parole after service of one-third of the terms, pursuant to 18 U.S.C. § 4205(f). This appeal followed. Freed contends that his conviction should be reversed for two basic reasons. First, he asserts that he was wrongfully denied effective appointed counsel to defend him at Government expense. Second, he argues that the evidence is insufficient to support a conviction. Specifically, he contends that there is no evidence that he acted willfully because the record shows that he was unable to pay his taxes and because his 1976 bankruptcy discharged his tax liability for the year 1972. II Like a plea of guilty, a plea of nolo contendere constitutes a waiver of all so-called “non-jurisdictional defects” or, more accurately, any claims not logically inconsistent with the issue of factual guilt, as well as the right to contest the factual merits of the charges against him. United States v. Heller, 579 F.2d 990, 992 n. 1 (6th Cir. 1978). See also 1 Wright, Federal Practice & Procedure § 177 (1969); Annotation, Plea of Nolo Contendere or Non Vult Contendere, 89 A.L.R.2d 540. “By his plea of nolo contendere, appellant was admitting every essential element of the of fense well pleaded in the indictment.” Heller, supra, 579 F.2d at 998, citing Lott v. United States, 367 U.S. 421, 426, 81 S.Ct. 1563, 1566, 6 L.Ed.2d 940 (1961). By pleading nolo contendere, Freed has admitted that he acted willfully. He cannot now be heard to attack the evidence as insufficient to support a finding of willfulness. Ill We also find Freed’s appointment of counsel claim to be without merit. Judge Joiner denied the motion for appointment"
}
] | [
{
"docid": "17871117",
"title": "",
"text": "came to Smith’s impound area to pick up his car and paid cash this time for the towing charge. He inquired as to whether Smith still had the pistol. Smith assured him that he did and in fact showed it to him. Defendant told Smith to hang on to it and that he would be back. A grand jury returned a two-count indictment against defendant. Count I charged that he was a previously convicted felon who did knowingly receive a firearm which had been shipped in interstate commerce in violation of 18 U.S.C. § 922(h)(1). Count II charged that he was a previously convicted felon who did possess a firearm that had been transported in commerce in violation of 18 U.S.C.App. § 1202(a)(1). The government elected to go to trial on Count I only; Count II was voluntarily dismissed. The Motion for Judgment of Acquittal When reviewing a “district court’s denial of a motion for a judgment of acquittal we must determine whether a rational jury drawing reasonable inferences ... from the evidence viewed in the light most favorable to the government ... could have found guilt beyond a reasonable doubt.” Villarreal Gorro v. United States, 516 F.2d 137, 140 (1st Cir.1975) (citations omitted). Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Canessa, 534 F.2d 402, 403 (1st Cir.1976). 18 U.S.C. § 922(h)(1) in pertinent part states: (h) It shall be unlawful for any person— (1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; to receive any firearm or ammunition which has been shipped or transported in interstate commerce. Defendant contends that the evidence is insufficient to establish the element of receipt of a firearm by him. To prove receipt it is not necessary to show that the defendant actually received the pistol since “receipt under 18 U.S.C. § 922(h)(1) may be shown circumstantially by proving possession .... ” United States v. Craven, 478 F.2d 1329, 1337 (6th Cir.), cert. denied, 414 U.S."
},
{
"docid": "4044236",
"title": "",
"text": "to present evidence at trial to show that under Illinois law, he was entitled to acquire and possess firearms and ammunition despite his status as a convicted felon. He essentially argues two points. First, that actions pursuant to the Illinois law are a valid defense to charges brought under the federal statute. Second, that he did not know he was violating any federal statute at the time of his arrest. We reject both arguments. With respect to the latter argument, it is well established that specific intent or knowledge of the defendant that he is violating the law is not an essential element for a violation of 18 U.S.C. § 922(h) or 18 U.S.C. app. § 1202(a). See United States v. Holmes, 594 F.2d 1167 (8th Cir.), cert. denied, 444 U.S. 873, 100 S.Ct. 154, 62 L.Ed.2d 100 (1979); United States v. Houston, 547 F.2d 104 (9th Cir. 1976). Instead, the “courts have consistently held that a defendant need only be shown to have knowingly received or possessed the firearm.” United States v. Sutton, 521 F.2d 1385, 1391 (7th Cir. 1975). Thus, Oliver’s second argument is completely without merit. Oliver’s first argument is more interesting but equally without merit. The court interprets it to be that the state created right to possession takes precedence over the prohibition of possession mandated by the federal statute. The significance of the Identification Card was addressed by this court in Sutton. We recognized there that 18 U.S.C. app. § 1203(2) provides that, in order for a convicted felon to be exempted from the absolute prohibition imposed by § 1202, two conditions must be met: (1) the felon must obtain a state or federal executive pardon of the underlying offense, and (2) the felon must receive an express authorization from the pardoning executive to receive, possess or transport a firearm in commerce. Id. at 1389. The defendant contended in part that the Identification Card satisfied the second requirement. We responded as follows: We do not view Sutton’s Illinois Firearm Owner’s Identification Card as constituting such an express gubernatorial authorization. The gun card was issued automatically"
},
{
"docid": "8051663",
"title": "",
"text": "of new parole guidelines promulgated after a defendant is sentenced does not violate Fed.R.Crim.P. 11 even where the defendant claims that when he entered his plea he was led to believe that he could expect to be paroled. Id. at 1336. C. The third basis for appeal is that the imposition of the statutory maximum penalty, consistent with the Rule 11 agreement, amounts to “cruel and unusual punishment.” There has been no showing that the trial court failed to consider the pleas for leniency made by defendant’s counsel. Defendant received benefit of plea bargain and the sentence was permissible within the statute. Therefore, there is no basis for appellate review. See United States v. Barbara, 683 F.2d 164 (6th Cir.1982). D. Defendant raises two more issues on appeal. Both issues are essentially statutory arguments. Each is without merit. Defendant’s first argument, although couched in terms of “due process and equal protection,” is really an attack on the sufficiency of the evidence that might have been produced at trial. This argument has been clearly waived by defendant’s guilty plea. United States v. Freed, 688 F.2d 24, 25 (6th Cir.1982). Defendant’s second argument is that while he “possessed” the firearm in violation of 18 U.S.C. App. § 1202, he did not “receive” it within the meaning of § 922(h)(1) because the rifle was owned by his brother. This argument is simply wrong. It is well settled that the term receipt includes any knowing acceptance or possession of a firearm. United States v. Lipps, 659 F.2d 960, 962 (9th Cir.1981). Proof of possession is equivalent to proof of receipt for most purposes. United States v. Beverly, 750 F.2d 34, 36 (6th Cir.1984) {citing United States v. Craven, 478 F.2d 1329, 1336 (6th Cir.1973)). In summary, defendant’s arguments are all without merit with the exception of the first argument as we have previously indicated. The judgment of the district court is AFFIRMED insofar as defendant’s conviction is concerned. The case is REMANDED with instruction to resentence the defendant in a manner which comports with the provisions and procedures of Rule 32(c)(3)(D)."
},
{
"docid": "3715119",
"title": "",
"text": "standards applicable to a double jeopardy claim were to be applied here, our analysis of the totality of the circumstances of this case would lead us to reject Laguer’s claim. III. Constructive Possession. Pedro Rivera challenges the sufficiency of the evidence supporting his conviction for possession of a weapon by a convicted felon, 18 U.S.C. § 922(h)(1) (1982). The weapon in question was the hand gun that was found behind a panel in a hall closet in Rivera’s Manhattan apartment. 18 U.S.C. § 922(h)(1) provides: (h) It shall be unlawful for any person— (1) who is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year * * * * to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. Rivera claims that although there was proof by stipulation that he was a convicted felon and that the weapon had travelled in interstate commerce, the government failed to prove that he received or possessed the weapon in question. Rivera’s claim falls short of the demanding standard a defendant must meet in order to secure reversal of a jury verdict based on insufficient evidence. See, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed. 2d 560 (1979) (if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”, conviction must be upheld) (emphasis in original); United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986) (“one who challenges on appeal the sufficiency of the evidence * * * bears ‘a very heavy burden’ ”) (citations omitted); United States v. Badalamenti, 794 F.2d 821, 828 (2d Cir.1986) (“in evaluating [a sufficiency of the evidence] claim, we must view the evidence in the light most favorable to the government and construe all possible inferences in its favor”) (citation omitted). Proof of constructive possession of a weapon satisfies the receipt element of § 922. See United States v. Beverly, 750 F.2d 34, 36 (6th Cir.1984); United States v. Craven, 478 F.2d 1329,"
},
{
"docid": "14578278",
"title": "",
"text": "United States v. Calhoun, 510 F.2d 861, 869-70 (7th Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1683, 44 L.Ed.2d 104 (1975), the Seventh Circuit states: As to this section [§ 1202(a)(1)], this circuit follows the majority rule that the required nexus with interstate commerce is satisfied by proof the received firearm was previously transported in interstate commerce. (emphasis supplied). Although the court previously described the convictions on the two counts in question as being for “possession” of two weapons (id. at 864), a reading of the indictment on file reveals that the defendant was charged only with their receipt and not possession. (Counts V, VI, Ind. # 73, H., CR.,-129, U.S.Dist.Ct., Northern District of Indiana, Hammond Division). The Government’s reliance on United States v. Ransom, 515 F.2d 885, 891 (5th Cir. 1975) is curious. There was no interstate commerce argument raised in the opinion; the issue was whether or not there was possession. United States v. Fields, 500 F.2d 69 (6th Cir.), cert. denied, 419 U.S. 1071, 95 S.Ct. 659, 42 L.Ed.2d 667 (1974); United States v. Bush, 500 F.2d 19 (6th Cir. 1974); and United States v. Day, 476 F.2d 562 (6th Cir. 1973), involve convictions for both receipt and possession. We note that in Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), the Court states: [W]hen a jury returns a guilty verdict on an indictment charging several acts in the con junctive, . . . the verdict stands if the evidence is sufficient with respect to any ■ one of the acts charged. . The only circuit court opinion we have read which deliberately blurs the distinction between possession and receipt is United States v. Brown, 472 F.2d 1181 (6th Cir. 1973), where the defendant was convicted of both unlawful receipt and possession of a firearm. The conviction was upheld although there had been only a prior interstate transportation. Citing the Bass dictum, the court concluded that “one could not very well possess a firearm without receiving it.” 472 F.2d at 1182. While this may be true in effect, the"
},
{
"docid": "9336067",
"title": "",
"text": "did not testify about the results of the test-firing. This was abundant evidence to prove that the weapon was a firearm within the meaning of section 1202(c)(3). See United States v. Polk, 808 F.2d 33, 34 (8th Cir.1986) (government need not prove gun was actually capable of firing). Rush next argues that sentencing under the ACCA was barred by collateral estop-pel, because he was convicted under section 1202(a) in the Southern District of Illinois and sentenced to a lesser penalty at a time when he had the same convictions that formed the basis for his present enhanced sentence. Apparently, Rush reasons that the district court in Illinois considered the previous convictions insufficient to invoke the ACCA and that this determination was binding on the district court in this case. This argument is meritless, since the lili-nois conviction was pursuant to a plea bargain and there is no evidence before us that the fact of his prior convictions was ever presented to the Illinois district court. Next, Rush argues that his sentence of fifteen years’ imprisonment without parole is a violation of the eighth amendment’s ban of cruel and unusual punishment. At the time of his conviction, Rush had been convicted of two counts each of burglary and stealing; operating a motor vehicle without the owner’s consent; three counts of robbery by means of a dangerous and deadly weapon; stealing $50 or over; and illegal possession of a firearm by a convicted felon. He received a sentence of fifteen years without parole, which was the minimum sentence for his crime under the ACCA. Especially in light of Rush’s significant record of prior felonies, the district court’s imposition of a term of years constituting the minimum possible sentence was not cruel and unusual punishment. See United States v. Stead, 740 F.2d 657, 659 (8th Cir.), cert. denied, 469 U.S. 1090, 105 S.Ct. 600, 83 L.Ed.2d 709 (1984). United States v. Gourley, 835 F.2d 249, 252-53 (10th Cir.1987) (life imprisonment without possibility of parole for section 1202(a) violation not unconstitutionally disproportionate). Rush raises three final arguments in a supplemental pro se brief. First,"
},
{
"docid": "10352725",
"title": "",
"text": "been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. Count II of the indictment was based on defendant’s possession of a .45 caliber Star automatic handgun and Count III was based on his possession of a .22 caliber Ruger revolver. It was stipulated that defendant is a convict within the stricture of section 922(h)(1) and that the weapons had moved in interstate commerce within the meaning of that section. Defendant contends that the statutory prohibition of receipt of “any firearm” leaves it unclear whether the simultaneous receipt of several weapons constitutes one or several offenses. Therefore, he continues, in the absence of proof that the weapons forming the predicate for separate counts were acquired by him at different times, there is but one offense under section 922(h)(1). The government parries the issue, arguing that if a convicted felon possesses a firearm on one occasion and later possesses another firearm on another occasion he is guilty of two separate offenses under the statute. We consider first the statutory construction issue, since we have not previously decided the allowable unit of prosecution under section 922(h)(1). We have, however, recently considered the same issue under the overlapping firearms provision, 18 U.S. C.App. § 1202(a), which makes it a crime when a person convicted of a felony “receives, possesses, or transports in commerce or affecting commerce ... any firearm.” In United States v. Marino, 682 F.2d 449 (3d Cir.1982), we held that the simultaneous possession of several firearms by a convicted felon constitutes a single offense under section 1202(a) absent a showing that the weapons were separately stored or acquired. This is also the construction placed on the statute by every other court that has considered it. See, e.g., United States v. Wiga, 662 F.2d 1325, 1336-37 (9th Cir.1981), cert. denied, 456 U.S. 918, 102 S.Ct. 1775, 72 L.Ed.2d 178 (1982); United States v. Hodges, 628 F.2d 350, 351-52 (5th Cir.1980); United States v. Rosenbarger, 536 F.2d 715, 721"
},
{
"docid": "17871118",
"title": "",
"text": "the light most favorable to the government ... could have found guilt beyond a reasonable doubt.” Villarreal Gorro v. United States, 516 F.2d 137, 140 (1st Cir.1975) (citations omitted). Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Canessa, 534 F.2d 402, 403 (1st Cir.1976). 18 U.S.C. § 922(h)(1) in pertinent part states: (h) It shall be unlawful for any person— (1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; to receive any firearm or ammunition which has been shipped or transported in interstate commerce. Defendant contends that the evidence is insufficient to establish the element of receipt of a firearm by him. To prove receipt it is not necessary to show that the defendant actually received the pistol since “receipt under 18 U.S.C. § 922(h)(1) may be shown circumstantially by proving possession .... ” United States v. Craven, 478 F.2d 1329, 1337 (6th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973), and possession can be either actual or constructive, exclusive or joint. United States v. Flores, 679 F.2d 173, 177 (9th Cir.1982); United States v. Alverson, 666 F.2d 341, 345 (9th Cir.1982). “Constructive possession exists when a person ... knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.” United States v. Craven, 478 F.2d at 1333. See also United States v. Birmley, 529 F.2d 103, 107 (6th Cir.1976); United States v. Daniels, 527 F.2d 1147, 1150 (6th Cir.1975). While there may be some question as to the sufficiency of the evidence to warrant a jury finding actual possession beyond a reasonable doubt, there was clearly sufficient evidence for a jury finding of constructive possession. It is true, as defendant argues, that “[m]erely showing that appellant was a passenger in the car and in proximity to the [item found] is, without more, insufficient to support a finding of possession.” United States v. Bethea, 442"
},
{
"docid": "6995289",
"title": "",
"text": "447, 449 (10th Cir.1997). In addition, for the reasons set forth below, we find it more probable than not that the same verdicts would have been delivered in this ease had the district court accepted Defendant’s stipulation. To obtain a conviction pursuant to § 922(g)(1), the government must prove beyond a reasonable doubt: (1) that the defendant has a prior conviction for “a crime punishable by imprisonment for a term exceeding one year”; (2) that the defendant thereafter knowingly possessed the firearm and ammunition specified in the indictment; and (3) that the possession was in or affecting interstate commerce. Defendant was also convicted under 26 U.S.C. § 5861(d), which requires proof beyond a reasonable doubt of the defendant’s receipt or possession of a firearm that is not registered to the defendant in the National Firearms Registration and Transfer Record. The issue of possession is the only element of either statute that is currently in dispute. It is well established that proof of either actual or constructive possession is sufficient under both statutes. E.g., United States v. Murphy, 107 F.3d 1199, 1207 (6th Cir.1997)(18 U.S.C. § 922(g)(1)); United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.1973)(26 U.S.C. § 5861(d)). Moreover, both actual and constructive possession may be proved by circumstantial evidence. E.g., Murphy, 107 F.3d at 1208; Craven, 478 F.2d at 1333. On brief, Defendant contends that the ease “hinged upon” the testimony of Yolanda Easterling, who claimed that the shotgun and shells belonged to Defendant. Defendant maintains that “[t]he issue before the jury was straight forward: who between Mr. Daniel and Ms. Easterling was in possession of the gun and ammunition?” Brief for Defendant-Appellant at 11-12. Defendant essentially argues that the erroneous introduction of the nature of Defendant’s prior convictions tipped the scales in causing the jury to believe Easterling’s testimony. Defendant relies primarily upon the testimony of his wife, Sharon Daniel. Daniel, who admitted on cross-examination that she is a convicted felon, testified that Easterling came to Defendant’s house carrying the shotgun and shells in her hand and asked Defendant if he wanted to buy the gun. Daniel"
},
{
"docid": "3715120",
"title": "",
"text": "in question. Rivera’s claim falls short of the demanding standard a defendant must meet in order to secure reversal of a jury verdict based on insufficient evidence. See, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed. 2d 560 (1979) (if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”, conviction must be upheld) (emphasis in original); United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986) (“one who challenges on appeal the sufficiency of the evidence * * * bears ‘a very heavy burden’ ”) (citations omitted); United States v. Badalamenti, 794 F.2d 821, 828 (2d Cir.1986) (“in evaluating [a sufficiency of the evidence] claim, we must view the evidence in the light most favorable to the government and construe all possible inferences in its favor”) (citation omitted). Proof of constructive possession of a weapon satisfies the receipt element of § 922. See United States v. Beverly, 750 F.2d 34, 36 (6th Cir.1984); United States v. Craven, 478 F.2d 1329, 1336 (6th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed. 2d 85 (1973). In United States v. Tribunella, 749 F.2d 104 (2d Cir.1984), we explained that: Constructive possession exists when a person * * * knowingly has the power and the intention at a given time to exercise dominion and control over an object, * * * and [it] may be proved by direct or circumstantial evidence. It is not necessary that such evidence remove every reasonable hypothesis except that of guilt. Id. at 111-12 (quoting United States v. Craven, 478 F.2d 1329, 1333). In Tribu-nella, we concluded that “the evidence showed far more than * * * mere proximity”, id. at 112, to the weapon and was therefore sufficient to support a jury finding of constructive possession where (a) the gun was found above the ceiling of the defendant’s bedroom, (b) other members of the family testified that they knew nothing about guns, (c) the evidence indicated that the defendant owned guns, and (d) ammunition and a magazine about guns were"
},
{
"docid": "2112881",
"title": "",
"text": "U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980), for the proposition that knowledge of his criminal record would give the jury a “more comprehensive view” of Lipps’ trustworthiness. Lipps, however, never attempted to misrepresent either himself or his background to the jury. Therefore, it appears that the district court erred in ruling that the Government showed that evidence of Lipps’ prior convictions was more probative than prejudicial. The district court’s error, however, was harmless as to the first and second counts. Lipps stipulated to two of the three elements of the offense and the only question remaining, therefore, was whether he was in receipt of the firearms. Lipps testified that he carried the two guns charged in counts one and two into the store of the prospective purchaser. He contends, however, that because his common-law wife owned the weapons, he was not in “receipt” of them. This Court has interpreted “receipt” broadly, holding that ownership itself is not required. See United States v. Mitchell, 557 F.2d 1290, 1292 (9th Cir. 1977). The term “receipt” includes any knowing acceptance or taking of possession of a weapon. See United States v. Turnmire, 574 F.2d 1156, 1157 (4th Cir. 1978); United States v. Craven, 478 F.2d 1329, 1336-37 (6th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973). Thus, any error in admitting evidence of Lipps’ prior convictions was harmless as to the first two counts because he admitted “receipt” and stipulated to the other two elements of the offense. This Court declines to review the conviction of the third count pursuant to the concurrent sentence doctrine. Where the sentences on two or more counts run concurrently, an appellate court may refuse to review a conviction on one count if the conviction under another count is affirmed and if no adverse collateral consequences result to the defendant from the additional conviction. See United States v. Martin, 599 F.2d 880, 887 (9th Cir.), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1067 (1979). Conviction on the third count would not appear to lead to adverse collateral consequences."
},
{
"docid": "10357090",
"title": "",
"text": "The district court, Eastern District of Missouri, was confronted with an argument very similar to that raised by Woods in United States v. Rosenstengel, 323 F.Supp. 499 (E.D.Mo.1971). The defendant in that case, like Woods, argued that because imposition of sentence was suspended following his guilty plea in state court, he was not “convicted” within the meaning of § 922(a) of Title 18 (a statute related to § 1202). In a well-reasoned opinion, the district court rejected this argument, holding that once guilt has been established whether by plea or by verdict and nothing remains to be done except pass sentence, the defendant has been convicted within the intendment of Congress. 323 F.Supp. at 502. In both United States v. Lehmann, 613 F.2d 130, 135 (5th Cir.1980) and Braswell v. United States, 224 F.2d 706 (10th Cir.) cert. denied, 350 U.S. 845, 76 S.Ct. 86, 100 L.Ed. 752 (1955) it has been held that a person under a suspended sentence under the Texas Rehabilitation Statute was a convicted felon for the purposes of various federal firearms statutes. See, also, United States v. Collins, 552 F.2d 243, 247-48 (8th Cir.1977) (We held that the conviction of a defendant, for which he was granted a suspension of imposition of sentence, can be used for impeachment purposes). We agree with the reasoning of the First Circuit and assert that “Where the consequences of the deprivation [e.g., restriction from possession of firearms] are relatively slight compared with the gravity of the public interest sought to be protected, we would give ‘convicted by a court’ its normal meaning.” United States v. Samson, 533 F.2d 721, 722 (1st Cir.1976). The normal meaning of the term “conviction” is that criminal proceeding where guilt is determined, either by verdict or plea. The sentencing is a second proceeding wherein the court decrees judgment and announces the sentence defendant is to receive. In Woods’ case, guilt had been established by his plea of guilty and all that remained was for the court to sentence him. Rather than sentence him at that time, imposition of sentence was suspended and he was"
},
{
"docid": "8051662",
"title": "",
"text": "pleading guidelines in effect when he pled, since new guidelines took effect prior to his sentencing. Defendant argues that because he relied on those old guidelines when he submitted his plea, applying the new guidelines is equivalent to “ex post facto application.” Defendant admits that he can cite no case law in support of his claim, but rather argues by analogy from a line of cases that holds that a law is ex post facto which “in relation to the offence [sic] or its consequences, alters the situation of a party to his disadvantage ... takes away or impairs the defence [sic] which the law had provided the defendant” at the time of the offense. United States v. Henson, 486 F.2d 1292, 1306 (D.C.Cir.1973) (en banc) (other citations omitted). Defendant’s claim has no merit. The U.S. Parole Commission guidelines are not “laws” within the prohibition of the ex post facto clause of the United States Const. Art. 1 § 9, Cl. 3. See Ruip v. United States, 555 F.2d 1331 (6th Cir.1977). Further, the application of new parole guidelines promulgated after a defendant is sentenced does not violate Fed.R.Crim.P. 11 even where the defendant claims that when he entered his plea he was led to believe that he could expect to be paroled. Id. at 1336. C. The third basis for appeal is that the imposition of the statutory maximum penalty, consistent with the Rule 11 agreement, amounts to “cruel and unusual punishment.” There has been no showing that the trial court failed to consider the pleas for leniency made by defendant’s counsel. Defendant received benefit of plea bargain and the sentence was permissible within the statute. Therefore, there is no basis for appellate review. See United States v. Barbara, 683 F.2d 164 (6th Cir.1982). D. Defendant raises two more issues on appeal. Both issues are essentially statutory arguments. Each is without merit. Defendant’s first argument, although couched in terms of “due process and equal protection,” is really an attack on the sufficiency of the evidence that might have been produced at trial. This argument has been clearly waived by"
},
{
"docid": "23411901",
"title": "",
"text": "intervening improper ex parte communication with the judge, the appearance of justice is served by referral to another judge for resentencing. In our view, this consideration of fairness outweighs any duplication of effort. The case is not complex; nor are the factors involved in resentencing especially difficult. Accordingly, we vacate the sentence and remand the case for resentencing by another judge. CONCLUSION Defendant’s conviction is affirmed; his sentence is vacated and the case is remanded for resentencing in conformity with this opinion. . Alternatively, the jury could have concluded from the evidence that the Thompson was fully automatic when the defendant first brought it into the gun store. . While proof that a particular residence is that of the defendant might not always provide sufficient evidence to establish constructive possession of every item in the residence, see United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973), we need not address that issue here. Alverson only argues that the trailer was not his residence; he does not dispute the conclusion that if the trailer was his residence, the Government has proved his con structive possession of the weapons found there. . Defendant does not object to being tried on multiple counts of possession. See, e.g., United States v. Jones, 487 F.2d 676, 679 (9th Cir. 1973); United States v. Smith, 591 F.2d 1105, 1108 (5th Cir. 1979). . Defendant relies on cases arising under 18 U.S.C. §§ 922(h)(1) (1976) and 1202(a)(1) (1976 App.) to argue that each firearm should not be a unit of prosecution. Defendant’s argument is erroneous because it relies on cases dealing with an ambiguous statute. See, e.g., United States v. Hodges, 628 F.2d 350 (5th Cir. 1980) (§§ 922(h), 1202(a)(1) App.); United States v. Bullock, 615 F.2d 1082 (5th Cir.), cert. denied, 449 U.S. 957, 101 S.Ct. 367, 66 L.Ed.2d 223 (1980) (§ 1202(a)(1) App.); United States v. Mason, 611 F.2d 49 (4th Cir. 1979) (§ 922(h)(1)). We do not find section 5861(d) similarly ambiguous. See Albernaz v. United States, 450 U.S. 333, 101"
},
{
"docid": "22473494",
"title": "",
"text": "defendant Key raises two challenges to his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Key first attacks the sufficiency of the evidence supporting his conviction. He then argues that the guilty verdict must be reversed because he was prejudiced when the District Court admitted Key’s stipulation to the nature of his prior felony conviction. We consider these claims in turn. 1. Sufficiency of the Evidence We review this challenge to the sufficiency of the evidence with the standard of review outlined in the previous section. In order to convict under § 922(g)(1), the Government must prove the following three elements: “ ‘(1) that the defendant had a previous felony conviction, (2) that the defendant possessed a firearm, and (3) that the firearm had traveled in or affected interstate commerce.’ ” United States v. Moreno, 933 F.2d 362, 372 n. 1 (6th Cir.1991) (quoting United States v. Petitjean, 883 F.2d 1341, 1347 (7th Cir.1989)). Defendant Key challenges only the sufficiency of the evidence that he possessed a firearm. Evidence of constructive possession suffices to satisfy the requirement under § 922(g)(1) of proof that a defendant possessed a firearm. Moreno, 933 F.2d at 373. “Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.” United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.1973). Proof that “the person has dominion over the premises where the firearm is located” is sufficient to establish constructive possession. United States v. Clemis, 11 F.3d 597, 601 (6th Cir.1993) (per curiam); accord United States v. Snyder, 913 F.2d 300, 304 (6th Cir.1990). The evidence at trial was sufficient to prove that Key had constructive possession of the weapons that were discovered in the East Lamed apartment when he was arrested. Gibbs testified at trial that Key and Riley used the East Larned apartment to process heroin and stash cocaine. Gibbs’ testimony was corroborated by the physical evidence seized when Key"
},
{
"docid": "14021876",
"title": "",
"text": "his motion for judgment of acquittal de novo. United States v. Kone, 307 F.3d 430, 433 (6th Cir.2002). In a sufficiency-of-evidence challenge to a conviction, the question is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir.1991) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “[W]e will reverse a judgment for insufficiency of evidence only if, viewing the record as a whole, the judgment is not supported by substantial and competent evidence.” Id. But while this means “we do not weigh the evidence” or “assess the credibility of the witnesses,” United States v. Wright, 16 F.3d 1429, 1440 (6th Cir.1994), this Court’s power of review in these cases is not toothless. We have defined substantial evidence as being “more than a scintilla. It means such relevant evidence as a reasonable mind might accept to support a conclusion. It is evidence affording a substantial basis of fact from which the fact in issue can be reasonably inferred.” United States v. Martin, 375 F.2d 956, 957 (6th Cir.1967). The following three elements comprise the offense of being a felon in possession of a firearm: (1) the defendant had a previous felony conviction, (2) the defendant knowingly possessed the firearm specified in the indictment, and (3) the firearm traveled in or affected interstate commerce. United States v. Kincaide, 145 F.3d 771, 782 (6th Cir.1998) (internal quotations and citation omitted). The only argument raised by Grubbs is whether, after reviewing the evidence, we can reasonably conclude that the Government established that he possessed the nine-millimeter handgun. Under 18 U.S.C. § 922(g)(1), a defendant may be convicted based on either actual or constructive possession of a firearm. Actual possession requires that the defendant have “immediate possession or control” of the firearm. United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.1973). In the instant case, the Government does not argue that Grubbs had physical control over"
},
{
"docid": "23103393",
"title": "",
"text": "verdict of guilty as to all counts charged in the indictment. Defendant was sentenced to 125 months imprisonment on each bank robbery charge, to run concurrently; 60 months imprisonment on the first § 924(c) charge, to run consecutive to the bank robbery sentences; and 240 months on the remaining two § 924(c) charges, to run consecutive to each other and to all other sentences; essentially amounting to a total sentence of 55 years imprisonment. Discussion Defendant appeals his convictions on four grounds: (1) the Government failed to prove “operability” within the definition of firearm under 18 U.S.C. §§ 921(a)(3) & 924(c), (2) the district court erred by allowing evidence of a subsequent unindicted bank robbery as “similar acts” evidence under Rule 404(b) of the Federal Rules of Evidence, (3) the district court erred in denying defense counsel’s motion to withdraw, and (4) the district court erred in allowing Defendant to withdraw his guilty plea. For the following reasons, we find Defendant’s arguments to be without merit. 1. “Operability” under § 92b(c) Defendant first asserts that the trial court erred in denying his Rule 29 motion for acquittal on the three § 924(c) charges. We review sufficiency-of-the-evidence claims by determining “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find the elements of the crime beyond a reasonable doubt.” United States v. Hernandez, 227 F.3d 686, 694 (6th Cir.2000) (citing United States v. Abdullah, 162 F.3d 897, 903 (6th Cir.1998)). In general, § 924(c) provides for an additional penalty whenever a defendant uses, carries, or possesses a “firearm” during and in relation to any crime of violence. See 18 U.S.C. § 924(c)(1)(A). For purposes of § 924(c), the term “firearm” is defined as “(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.” Id. § 921(a)(3). Defendant contends that his § 924(c)"
},
{
"docid": "15881426",
"title": "",
"text": "interpretation of the statute. The entitlement is undisputed under the first interpretation, because the defendants do not argue that the certification was improper. As regards the second interpretation, we find that the evidence in question is a “substantial proof of a fact material in the proceeding.” The state guilty pleas are offered to prove that the defendants stole firearms, which is a material fact relevant to the federal prosecution for possession of firearms, even under the defendant’s interpretation of the phrase. It is true that the government seeks to use the evidence for rebuttal purposes, but that is only because the district court has ruled that the government may not use that evidence in its direct case. Loud Hawk does not stand for the proposition that the government may never appeal an order suppressing impeachment evidence. As regards the defendants’ policy argument, we agree with the government that the infringement of defendants’ speedy trial rights caused by this appeal is outweighed by the reliability of this evidence, which consists of an admission by the defendants. Having decided the jurisdictional issue, we turn to the merits. The district court’s June 8th order suppressing for all purposes the statements made in the plea colloquy on the state charges was based on both the Self-Incrimination Clause and the Due Process Clause of the Fifth Amendment. Assistant District Attorney Landry’s failure to disclose the pending federal investigation to the defendants and their attorneys was the “functional equivalent” of a misrepresentation, Appendix at 652 (hereinafter App.), and undermined the knowing, intelligent, and voluntary character of the defendants’ guilty pleas. Furthermore, given the duty of good faith imposed by the Due Process Clause upon the prosecutor during plea bargaining, it would not be “appropriate and fair” in the circumstances of this case to allow the admission of evidence concerning the state pleas for any purpose in the federal case. Id. at 659. Notwithstanding the packaging of this issue, the defendants are essentially collaterally attacking their state court guilty pleas. See United States v. Long, 852 F.2d 975, 979-80 (7th Cir.1988). Ordinarily, it is inappropriate for a"
},
{
"docid": "23649752",
"title": "",
"text": "Finally, the defendant argues that his fifteen-year mandatory minimum sentence as an armed career criminal is grossly disproportionate to the status offense of felon in possession of a firearm in light of the totality of the circumstances and constitutes cruel and unusual punishment under the Eighth Amendment. Defendant’s prior convictions include two breaking and entering occupied dwelling convictions, one for attempted breaking and entering an occupied dwelling and one for attempted breaking and entering a business place. Defendant contends that the sentencing court’s reliance on these convictions as violent felonies within the meaning of 18 U.S.C. §§ 924(e)(1) and 924(e)(2)(B) constitutes cruel and unusual punishment. Specifically, the defendant focuses on the staleness of the 1975 and 1976 convictions and the fact that all the convictions were for non-violent, unarmed property offenses. Furthermore, the transcripts of the plea proceedings for the 1975 and 1976 convictions have been destroyed following 15 years. Thus, defendant asserts that his counsel was unable to review the transcripts to determine if the defendant’s pleas were entered knowingly and voluntarily. From these circumstances, the defendant argues that the imposition of the mandatory minimum sentence of fifteen years for an armed career criminal is grossly disproportionate to the status offense of felon unlawfully in possession of firearms. We disagree. First, both attempted breaking and entering and breaking and entering an occupied dwelling constitute burglary under 18 U.S.C. § 924(e)(2)(B)(n) of the Armed Career Criminal Act. See United States v. Fish, 928 F.2d 185 (6th Cir.), cert. denied, — U.S. -, 112 S.Ct. 115, 116 L.Ed.2d 84 (1991); United States v. Lane, 909 F.2d 895 (6th Cir.1990), cert. denied, 498 U.S. 1093, 111 S.Ct. 977, 112 L.Ed.2d 1062 (1991). Thus, the defendant’s argument that his prior convictions were unarmed, nonviolent felonies has no merit. Second, the Supreme Court has held that the mere unavailability of transcripts of the defendant’s guilty pleas do not prohibit the use of his prior convictions for sentence enhancement, even when the question is waiver of constitutional rights. See Parke v. Raley, — U.S.-, -, 113 S.Ct. 517, 523-24, 121 L.Ed.2d 391 (1992). Thus, we"
},
{
"docid": "16198065",
"title": "",
"text": "“a felon who receives a firearm must also possess it,” yet “the converse may not be true. For example, a felon may possess a firearm without having ‘received’ it; he may have manufactured the gun himself.” Id. at 862 & n. 9, 105 S.Ct. 1668 (citing United States v. Martin, 732 F.2d 591, 592 (7th Cir. 1984)). Several dictionaries lend support to this distinction between possession and receipt. According to Black’s Lato Dictionary, the verb “receive” is defined as “To take into possession and control; accept custody of; collect.” Black’s Law Dictionary 1268 (6th ed.1990). Similarly, “receive,” as defined by the Oxford English Dictionary, is “[t]o take into one’s hand, or into one’s possession (something held out or offered by another); to take delivery of (a thing) from another, either for oneself or for a third party.” Oxford’s English Dictionary 2d 314 (1989); see also United States v. Mohrbacher, 182 F.3d 1041, 1048 & n. 5 (9th Cir.1999) (citing definitions of “receipt” in considering whether downloading of pictures could constitute receipt of child pornography as opposed to transportation of child pornography and finding that downloads are considered receipt). Because receipt of child pornography necessarily entails possession, but possession of child pornography does necessarily require receipt, defendant’s motion is in the Ball park. Receipt equals possession plus the additional element of acceptance, rendering possession a lesser in-eluded offense of receipt under the Schmuclc test. Cf. United States v. Morgan, 435 F.3d 660, 662-63 (6th Cir.2006) (stating in dicta that a defendant who was initially charged with receiving child pornography under 18 U.S.C. § 2252A(a)(2) ultimately “entered an oral conditional plea of guilty to possessing images depicting minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252A(a)(5)(B), a lesser-included offense of the charged violation.” ) (emphasis added); United States v. Kuchinski, 469 F.3d 853 (9th Cir.2006) (while rejecting a double jeopardy argument on a technical grounds, stating that the argument that a prosecution for possession of child pornography barred trial on a receipt of child pornography charge has some plausibility on its face under the Blockburger test). The government,"
}
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.